RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 June 2007
      DOCKET NUMBER:  AR20070000273


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. LaVerne Douglas               |     |Chairperson          |
|     |Mr. Edward Montgomery             |     |Member               |
|     |Ms. Rea Nuppenau                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the character of his service currently
reflected on his Certificate of Release or Discharge (DD Form 214) be
upgraded to honorable; his rank and pay grade be changed to private first
class (E-3); his reentry eligibility (RE) code be changed to RE-1; his
separation code be changed to "Failure to maintain minimum qualification
for retention:  E-3 with greater than 10 years service"; and his narrative
reason for separation be changed to "Failure to maintain minimum
qualification for retention."

2.  The applicant states that one of his first memories is that of wanting
to be a member of the Uniform Services.  He states that he can remember
playing the role of many military characters depicted in the movies and in
television shows at that time.  He states that he was so dedicated to his
dream that he joined the Army an entire year prior to graduating from high
school.  He states that he attended basic training just 2 days after his
eighteenth birthday and that a little over eight weeks later, his dream of
becoming a Soldier was realized.  The applicant goes on to provide details
of his life while he was in the military and he states that on 23 May 1999,
he was accused of inappropriate behavior.  He states that the allegations
were investigated and dismissed as unfounded by the Criminal Investigative
Division at Fort Campbell, Kentucky.

3.  The applicant contends that it was believed that the allegations were
in retaliation to a negative counseling the accuser had received
referencing his continued failure to meet the Army's height and weight
standards.  He states that approximately 1 month later, he was again
defending himself against allegations of inappropriate behavior.  The
applicant states that despite any physical evidence, he was convicted by a
general court-martial of three of the five charges levied against him and
that he was sentenced accordingly.  He states that he is of the opinion
that his case was prejudiced by the existing volatile climate as the
military environment was facing criticism of the "don't ask, don't tell"
policy, and charges of inappropriate sexual behavior by the President and
the former sergeant major of the Army.  He states that the character of
service that he received in no way represents his total military service of
over 11 years.  The applicant concludes by stating that despite the
challenges and obstacles he faces as a result of the court-martial
conviction, he has completed a Bachelor's of Science Degree and that he is
currently pursuing his Master's Degree.  He states that his intention is to
continue his pursuit of a military career as a healthcare administrator in
the Medical Services Corps.



3.  The applicant provides in support of his application, a copy of the
Department of the Army Report of Result of Trial.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 April 2000.  The application submitted in this case is
dated 26 December 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 2 September 1987, the applicant enlisted in the United States Army
Reserve (USAR) under the Delayed Entry Program, in New Haven, Connecticut,
for 8 years, in the pay grade of E-1.

4.  On 28 July 1988, he enlisted in the Regular Army (RA) for 4 years in
the pay grade of E-1.  He went on to successfully complete his training as
an automated logistical specialist.

5.  The applicant was promoted to the pay grade of E-2 on 28 January 1989;
promoted to the pay grade of E-3 on 28 July 1989; promoted to the pay grade
of E-4 on 28 February 1990; promoted to the pay grade of E-5 on 1 July
1994; and promoted to the pay grade of E-6 on 29 December 1998.

6.  The available records indicate that on 22 October and 25 October 1999,
the applicant was tried and convicted by a general court-martial of two
specifications of orally communicating certain indecent language, and of
one specification of committing an indecent assault upon a person not his
wife, by grabbing her breast and by grabbing her wrist and neck to kiss her
by forcing his tongue in her mouth, with intent to gratify his lust and
sexual desires.  He was sentenced to confinement for 1 month, a reduction
to the pay grade of E-3, a forfeiture of pay in the amount of $500.00 per
month for 3 months and to be reprimanded.



7.  On 7 February 2000, the applicant was notified that he was being
recommended for discharge under the provisions of Army Regulation 635-200,
chapter 14, for misconduct, commission of a serious offense.  The commander
cited his conviction by general court-martial as a basis for the
recommendation for discharge.

8.  The applicant acknowledged receipt of the notification on 23 February
2000.  After consulting with counsel, he requested to have his case heard
by an administrative separation board and representation by counsel.

9.  On 21 March 2000, the applicant submitted a second acknowledgement of
receipt of the 23 February 2000 notification.  In this acknowledgement, he
indicated that he was requesting consideration of his case by an
administrative separation board; that he desired a personal appearance
before an administrative separation board; and that he be represented by
counsel by the administrative separation board.

10.  On 21 March 2000, the applicant submitted a request for a conditional
waiver indicating that he was voluntarily waiving consideration by an
administrative separation board contingent upon his receiving a
characterization of service or description of separation no less favorable
than honorable.  He indicated that if the separation authority refused to
accept his conditional waiver that his case would be referred to an
administrative separation board.  In the request the applicant stated that
if his conditional waiver was not accepted, he desired a personal
appearance before an administrative board and to be represented by counsel.

11.  On 28 March 2000, the applicant submitted a waiver of his rights to
have his case considered by an administrative board and to be represented
by counsel.

12.  The appropriate authority approved the recommendation for discharge
and he directed the issuance of a general discharge.

13.  Accordingly, on 10 April 2000, the applicant was reduced to the lowest
enlisted pay grade (E-1) and he was discharged under the provisions of Army
Regulation 635-200, chapter 14-12c for misconduct, commission of a serious
offense.  He had completed 11 years, 7 months, and 18 days of net active
service and he was furnished a general discharge; an RE-3 code; and a JKQ
(misconduct) separation code.

14.  A review of the available records fails to show that the applicant
ever applied to the Army Discharge Review Board for an upgrade of his
discharge within that board's 15-year statute of limitation.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.

16.  Army Regulation 635-5-1 prescribes the specific separation codes to be
entered on the Certificate of Release or Discharge (DD Form 214).  It
states that when a soldier is released from active duty as a result of
misconduct the Soldier will be assigned a JKQ separation code.

17.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment. That chapter includes a list of armed forces RE
codes, including RA RE codes.

18.  RE-3 applies to persons not qualified for continued Army service, but
the disqualification is waivable.  Certain persons who have received bars
to reenlistment are so disqualified, as are persons discharged under the
provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly discharged and assigned a characterization
of service that reflects his overall record of service.

2.  His contentions have been noted; however, his overall record of service
was not completely honorable.  He was convicted by a general court-martial
of communicating indecent language and committing an indecent assault.  He
has



provided no evidence to support his contention that the allegations against
him were in retaliation to a negative counseling the accuser had received
referencing his continued failure to meet the Army's height and weight
standards.  The character of service that he was assigned appropriately
reflects his overall record of service.

3.  The information contained in his official records clearly reflects his
acts of misconduct, which was used as a basis for his discharge from active
duty.  Consequently, his discharge based on misconduct was appropriate and
he was assigned a separation code that coincides with his reason for
discharge.

4.  The applicant was reduced to the lowest enlisted pay grade, assigned a
reentry code, and separated from the Army in accordance with applicable
regulations.  There is no evidence in the available records nor has the
applicant submitted any evidence to support his contention that the RE
code, separation code, pay grade, narrative reason for separation, or
character of service that is currently reflected on his DD Form 214 is
incorrect.

5.  Although the Army Board for Correction of Military Records has denied
both a change in the applicant's reentry eligibility code and waiver of the
disqualification, this does not mean that he has been completely denied the
opportunity to reenlist.  Recruiting personnel have the responsibility for
initially determining whether an individual meets current enlistment
criteria.  They are required to process a request for waiver under the
provisions of chapter 4, Army Regulation 601-210 (Regular Army and Army
Reserve Enlistment Program).  Therefore, since enlistment criteria does
change, and since he has the right to apply for a waiver, it is suggested
that he periodically visit his local recruiting station to determine if he
should apply for a waiver.

6.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 April 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 9 April 2003.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LD __  ___EM __  ___RN __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____ LaVerne Douglas _______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000273                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070612                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |20000410                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 14                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000/ADMINISTRATIVE DISCHARGE       |
|2.  626                 |144.6000/DISCHARGE FOR MISCONDUCT       |
|3.  671                 |144.6730/SERIOUS OFFENSE                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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