| Mr. Carl W. S. Chun | Director | |
| Ms. Gale J. Thomas | Analyst |
| Ms. June Hajjar | Chairperson | |
| Mr. Thomas F. Baxter | Member | |
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: That his records be corrected by upgrading his bad conduct discharge (BCD). The applicant states that the Department of Veterans Affairs (VA) is terminating his benefits because of his record of service, that his court-marital conviction which led to his BCD was biased with racism, and denied him due process.
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 were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.
The applicant initially enlisted in the Regular Army on 9 December 1946 for a period of 3 years and reenlisted on 2 October 1948.
On 30 January 1951, the applicant was convicted by a special court-martial of possession of narcotics on 26 August 1950, and the use of narcotics on 25 and
26 August 1950. His sentence was separation with a bad conduct discharge and a forfeiture and confinement at hard labor for six months. The finding of guilty for the use of narcotics on 25 and 26 August 1950 was disapproved and the sentence to confinement at hard labor was reduced from six months to two months. The sentence was affirmed on 16 April 1951.
There is no information in the available records showing the date of the applicant’s discharge.
On 2 January 2001, the applicant was notified by the Department of Veterans Affairs that the character of his discharge for the period 9 December 1946 to 19 April 1951 was not honorable for VA purposes, which made him ineligible for VA benefits. The notification advised him of rebuttal procedures and suggested that he petition the Army Discharge Review Board or the Army Board for Correction of Military Records
to have his discharge upgraded.
In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. Trial by court-martial was warranted by the gravity of the offense charged, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
There is no evidence in the available records to demonstrate that the applicant was the victim of racial prejudice or that he was denied due process of the law.
There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
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 19 April 1951, the date the applicant gives as his separation date. The time for the applicant to file a request for correction of any error or injustice expired on 19 April 1954.
The application is dated 5 March 2001 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. Prior to reaching this determination the Board looked at the applicant's entire file. It was only after all aspects
of this case had been considered and it had been concluded that there was no basis to
recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__JH ___ __TFB___ __JTM __ CONCUR WITH DETERMINATION
| CASE ID | AR2001054569 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20010816 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | 142.0 |
| ISSUES 1. | |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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In the absence of evidence to the contrary, the applicant’s conviction and discharge were effected in accordance with applicable law and regulations, and his discharge appropriately characterizes the misconduct for which he was convicted. In view of the foregoing, the applicant’s records should be corrected as recommended below. That all of the Department of the Army records related to this case be corrected by awarding the applicant the United Nations Service Medal.
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He states his discharge should be upgraded based on his post-service conduct. The applicants military records are not available to the Board. His reconstructed military service record revealed he was convicted by a summary court-martial on two separate prior occasions.
AF | BCMR | CY2008 | BC-2007-02581
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-02581 INDEX CODE: 110.00 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ______________________________________________________________ APPLICANT REQUESTS THAT: His undesirable discharge be upgraded. He served in the Army Air Force from 25 November 1947 through 15 December 1950. Exhibit B.
On 11 September 1952, the Air Force Board of Review set aside the findings of guilty of Charge II and all specifications thereunder and affirmed the sentence as modified to provide for a dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for 1 year and 6 months. He was sentenced to a dishonorable discharge and one year and 6 months’ confinement. We therefore conclude that no basis exists to recommend favorable action on the applicant’s request.
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He was sentenced to receive a bad conduct discharge, to forfeit all pay and allowances, and to confinement at hard labor for 3 months. He regained his memory in the Temple City Jail on 5 July 1953. On 6 August 1953, the applicant was released from the Army with a bad conduct discharge
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His conviction and discharge were effected in accordance with applicable law and regulations and the type of discharge appropriately characterizes the misconduct for which the applicant was convicted. His record of service included three summary court-martial convictions, two special court-martial convictions, and 404 days of lost time. Therefore, his record of service is insufficiently meritorious to warrant an upgraded discharge.
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In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file. On 11 January 1954, the applicant’s commander requested that he appear before a board of officers convened under the provisions of Army Regulation 615-368, to...
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