APPLICANT REQUESTS:  In effect, the applicant requests  reinstatement into the Army for the purpose of retirement with reimbursement for all back pay and allowances, because of denial of due process.  He states that he was tried by a court-martial and found not guilty in 1980, but was forced to remain in the unit of the commander who preferred the charges.  He was discharged because of a civil court conviction.      

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered the Army on 30 April 1974 and was released from active duty on 29 April 1977.  His character of service was honorable.

The applicant reenlisted for four years on 2 March 1979 and assigned to Fort Gordon, Georgia.

A 5 March 1981 report of medical examination indicates that the applicant was medically qualified for separation.  In the report of medical history the applicant furnished for the examination, he stated that he was in good health.  A report of mental status evaluation indicates that the applicant was mentally responsible, was able to distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the medical standards for retention in the Army.

On 13 March 1981 the applicant was arraigned and tried by a summary court-martial for disobeying a lawful order.  He pled not guilty and was found not guilty.

On 17 June 1981 the applicant received nonjudicial punishment under Article 15, UCMJ.

The applicant received four letters of support, one from his battalion commander, one from his former commanding 

officer, and the other two from NCO for whom he worked, commending him for his outstanding performance of duty.

On 2 September 1981 the applicant’s commanding officer recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, for a civilian conviction.  That official stated that the applicant had a record of nonjudicial punishment under Article 15, UCMJ, on two occasions, and was convicted by a civil court on 7 May 1980.  The applicant had been counseled on five occasions.

On 3 September 1981 the applicant was barred from reenlisting, because of indebtedness to the government for unofficial phone calls charged to a government phone; receipt of additional notification of phone charges; civil conviction for damage to property, theft of motor vehicle parts and components, and sentenced to five years probation; nonjudicial punishment under Article 15, UCMJ; and passing two bad checks, among other reasons.

The applicant consulted with counsel and requested consideration of his case by a board of officers.  He stated that he did intend to appeal his civilian conviction.

A 17 September 1971 letter from the Georgia Department of Offender Rehabilitation indicates that the applicant was placed on first offender probation for five years on 
7 May 1980 for the offense of theft of motor vehicle parts and components, and ordered to pay fines and restitution.  That letter indicates that the applicant had paid those fees in full.

On 25 September 1981 a board of officers met to determine if the applicant should be eliminated from the Army.  The applicant was represented by counsel during the board proceedings.  The board found that the applicant should be discharged based on the civil conviction and the exhibits presented by the recorder and the defense counsel.  The board recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, and that he receive an Honorable Discharge Certificate.

On 8 December 1981 the applicant’s consul submitted a rebuttal to the review of the elimination proceedings.  The consul specifically objected to the lack of impartiality of the board president, as well as to the appearance of the lack of impartiality of the board and the resulting denial of due process.  He stated that the counsel did not challenge the president of the board concerning his knowledge of the and facts and circumstances and his relationship to the applicant in that he had served as the applicant’s executive officer.  He stated that the president was not serving in an impartial function, that the president became very active in the cross-examination of witnesses, that the failure of the applicant’s counsel to challenge the president of the board because of an appearance of impropriety or the lack of impartiality, should not be taken as a waiver of the right of the applicant.  Counsel stated that the applicant did not receive an impartial hearing and requested that the findings and recommendations of the board be disapproved and action be taken to remedy the denial of due process.

The rebuttal was reviewed by the command staff judge advocate.  That official indicated that the applicant’s counsel did not contest that he had the full opportunity to question the board president, that the testimony did not show evidence of impartiality on his part, and that the applicant’s failure to exercise his right to challenge constituted a waiver of that right.  That official stated that the questions by the board president did not show an obvious and patent lack of impartiality on his part, but rather an attempt to gain the facts to arrive at a fair decision.  The evidence did show that the applicant received numerous counseling statements for misconduct, such as indebtedness, bad checks, disrespect to an NCO, and failure to report to a formation, and that he had been convicted in a civil court.  That official recommended that the findings and recommendations of the board be approved.

On 11 December 1981 the separation authority approved the recommendations of the board.  The applicant was discharged on 15 December 1981 because of misconduct-conviction by a civil court.  His character of service was honorable.  He had 2 years, 9 months, and 14 days of service.
On 1 February 1983 the applicant applied to the Army Discharge Review Board (ADRB) to have the reason for his discharge changed.  A 25 August 1983 memorandum from the ADRB indicates that the applicant withdrew his application.

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.  Paragraph 14-12c states that soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM.

The Manual for Courts-Martial indicates that the maximum punishment for larceny of other than military property of a value of $100.00 or less is a bad conduct discharge and six months confinement.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 
15 December 1981, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 15 December 1984.

The application is dated 30 August 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director