RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 January 2004
         DOCKET NUMBER: AR2003088668


         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.

Mr. Carl W. S. Chun		Director
Mr. Paul Wright		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Mr. John T. Meixell		Member
Ms. Linda M. Barker		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

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

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his discharge be upgraded to honorable with all benefits.

2. The applicant states that he has been filing this claim for over 20 years. Since 25 October 1978, he has been applying for all his rights, privileges and property to be restored, but each time, he was either denied or was given some kind of excuse. At this time, he is under MHMR (Mental Health Mental Retardation) care for depression. The depression started soon after he was wrongfully found guilty and sentenced to the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas. He asks that this Board please get him an appointment at the Veteran's Administration or a Government office so this claim might be settled.

3. The applicant apparently believes, in effect, that his Dishonorable Discharge was set aside by appellate action, but that the Army did not abide by the court's decision.

4. The applicant provides a copy of General Court-Martial Order 27, dated 25 October 1978.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error and/or injustice that occurred on 3 September 1982. The application submitted in this case is dated 18 March 2003.

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 limitation 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 3 October 1974, the applicant enlisted in the Regular Army for a period of 3 years. He successfully completed basic combat training and advanced individual training. He was awarded military occupational specialty (MOS) 76Y10, Unit Supply Specialist (Armorer), and was assigned to Company B, 1/66th Armor, 2nd Armored Division, Fort Hood, Texas.

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4. On 4 April 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failing to obey a lawful order of a non-commissioned officer. Punishment included forfeiture of $25.00 for one month and 14 days of extra duty. The applicant appealed the punishment. On 15 April 1975, the punishment was suspended for 30 days.

5. On 7 September 1975, the applicant was apprehended by military authorities and placed in pre-trial confinement at the Fort Hood Area Confinement Facility. On 12 September 1975, the applicant was convicted by a General Court-Martial of attempting to steal an eight track stereo tape player on 19 May 1975, three specifications of willfully and wrongfully damaging 3 privately-owned vehicles and removing 3 stereo tape players on 19 May 1975, five specifications of stealing personal property from 19 through 20 May 1975, and five specifications of unlawfully entering five privately-owned vehicles with the intent to commit theft from 19 through 20 May 1975. The sentence included reduction to pay grade
E-1, confinement at hard labor for two years, and a dishonorable discharge. He was transferred to the USDB for confinement.

6. On or about 14 January 1976, the applicant was released to civil authorities in Tarrant County, Texas, on charges of aggravated robbery. He was convicted on 22 January 1976 and sentenced to 3 years' confinement in the Texas Department of Corrections (TDC).

7. While awaiting appellate review of his court-martial conviction, the applicant was reassigned from the USDB to the Personnel Control Facility (PCF), Fort Sill, Oklahoma, effective 7 September 1976. Although reassigned, he remained in the physical control of the TDC. On 22 October 1976, the US Army Court of Military Review affirmed the applicant's findings of guilty and the sentence. The applicant was advised of the court's decision and his right to appeal. The applicant did not return his request for appeal to his commander, instead appealing directly to the United States Court of Military Appeals.

8. On 3 September 1976 as a result of consideration by the Army Clemency and Parole Board, the Secretary of the Army remitted the unexecuted portion of the applicant's sentence to confinement at hard labor.

9. Because he did not receive the applicant's request for appeal, the Fort Sill PCF commander processed the applicant for discharge as a result of his General Court-Martial conviction and sentence. On 10 January 1977, the applicant was issued a Dishonorable Discharge.

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10. On 15 May 1978, the United States Court of Military Appeals reversed the decision of the US Army Court of Military Review and set aside the findings and sentence imposed against the applicant. The Record of Trial was returned to the Judge Advocate General of the Army for a possible rehearing.

11. On 27 June 1978, the General Court-Martial convening authority at Fort Hood, Texas determined a rehearing would be impractical. Additionally, the applicant had been convicted by civil authorities and was then under a sentence to confinement with the TDC. The convening authority recommended separation under the provisions section III, chapter 14, Army Regulation (AR) 635-200, for civil conviction.

12. The Fort Sill PCF commander revoked the applicant's previous discharge order and initiated action to discharge the applicant under the provisions of section III, chapter 14, AR 635-200, by reason of a civil court conviction. On 13 September 1978, the applicant was notified that action was being initiated to separate him from the Army for his civil court conviction. On 20 September 1978, he acknowledged receipt of the notification. He waived consideration of his case by a board of officers, waived representation by counsel, declined to submit a statement in his own behalf, and finally indicated that he did not intend to appeal his civil conviction. On 27 October 1978, he was discharged with an under other than honorable conditions (UOTHC) discharge.

13. On 3 September 1982, the Army Discharge Review Board (ADRB) denied the applicant's appeal for an upgrade of discharge.

14. Army Regulation 635-200 sets for 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or is
unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier's overall record. Only a general court-martial convening authority (GCMCA) may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15. 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. The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB. In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1. The applicant alleges he was given a Dishonorable Discharge, but that it was set aside and all rights, privileges, and property were ordered to be restored. While this is partially correct, it is also true that he was discharged under other than honorable conditions as a result of an administrative separation for misconduct.

2. The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

3. The applicant's medical record does not show any medical condition pertaining to depression. Eligibility for veteran's benefits does not fall within the purview of the Board, and the Board does not upgrade discharges solely for the purpose of qualifying for veteran’s benefits. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs (DVA) for further assistance. The DVA has two regional offices located in Houston and Waco, Texas. The Board has no authorization to make DVA appointments for individuals.

4. Records show the applicant should have discovered the error or injustice now under consideration on 3 September 1982, the date of the ADRB's denial of his request; therefore, the time for the applicant to file a request for correction of any
error or injustice expired on 2 September 1985. 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 file in this case.

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BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__kan___ __jtm___ __lmb___ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.



                           Kathleen A. Newman
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088668
SUFFIX
RECON
DATE BOARDED	20040108
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19781027
DISCHARGE AUTHORITY	AR 635-200, Chap 14
DISCHARGE REASON	A61.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6100
2.
3.
4.
5.
6.