RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040011580


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Larry Olson                   |     |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 findings of guilty in his 1975 summary
court-martial be “reversed to not guilty” and that the court-martial and
all specifications be stricken or expunged from the record as though it
never happened.  He asks that the personnel at the unit at the time of the
court-martial “be notified of the reversal that the conviction was wrong.”

2.  The applicant also requests that his grade be restored with appropriate
pay, that the fine of $150.00 be reversed and returned to him, and that
compensatory damages be awarded to him.

3.  The applicant states that new evidence, ineffective counsel, absence of
due process, and excessive punishment are the bases for his petition.

4.  The applicant states that he was arrested in his room on or about
22 December 1974 and taken to the CID (Criminal Investigation Division) and
interviewed without the presence of legal counsel.  He states that about 4
months later there was a 2 or 3 day summary court-martial and that he was
found guilty of three of the four charges and was sentenced.  He notes his
sentence included reduction from pay grade E-3 to pay grade E-1, forfeiture
of $150.00, and confinement at hard labor for 30 days.

5.  The applicant notes that he was confined for 23 days and then
transferred to the United States Army Retraining Brigade where he spent
approximately 2 months and 28 days and was then given a 90 day drop with an
honorable discharge.  He states he later joined the Ohio National Guard.

6.  The applicant states that he recently became aware of this Board and
was never informed that he could appeal the decision of the summary court-
martial back in 1974.  He states that he is filing this petition based on
newly discovered evidence in that he was prevented from exercising his
right to appeal at that time and thus denied due process.  He states he is
claiming ineffective counsel because he was prevented from having all
opportunities available to him for a fair trial and maintains that it was
the duty of his counsel to inform him of his options, including the
appellate process.  He also states that his counsel had a duty to
diligently argue his innocence on every charge of the case.

7.  In his statement, the applicant argues that he could not be guilty of
any of the charges against him.  He notes that Charge I (destruction of
government property) was not possible because he was never informed that
damaging property that was already damaged and "waiting to be added to a
massive stockpile of scrap and later to be sold to a Japenese [sic] steel
manufacture for recycling and resale…would be a crime.”  He notes that he
was not found guilty of that charge and as such wants it stricken and
expunged from his record as it is incriminating to him and all those who
view it.

8.  He states that regarding the charge of theft of government property he
should not have been found guilty of that charge and that his legal counsel
should have argued as such.  He states the charge stemmed from his picking
up an automotive timing light lying on the ground which had caught his eye
while he was walking guard duty.  He states to him it was garbage,
something that no one wanted any more.  He states that at no point did he
compromise the security of the junkyard that he was guarding when he picked
up what he thought was garbage and maintains that the timing light was not
catalogued as government property and as such he could not be guilty of
theft of government property.  He maintains that his attorney should have
pointed this out immediately after the finding of the court on the first
charge.

9.  The applicant states that the third charge addressed his failure to
perform his duty and is “related and dependent to charge one and possibly
charge two.”  He notes that because he was not found guilty of charge one,
“because the vehicle in question was not part of the impound lot’s
inventory and therefore [he] was not responsible for guarding that vehicle
and therefore not derelict in [his] duty.”  He states that no vehicles that
were inside of the impound lot were damaged and as such, he was not
derelict in his duties.  He therefore argues he was not guilty of charge
three.  He notes his co-guard was not charged and instead testified against
him.  He questions why the other Soldier did not prevent him from damaging
the scrapped vehicle or picking up the timing light and reporting it.
Rather, he notes, the co-guard did not point the finger at the applicant
until the co-guard was confronted after the guard shift was over.  The
applicant maintains “any competent lawyer would have pointed this out and
argued it in a court of law.”  He notes his did not.

10.  In regards to Charge IV (failure to have his identification card) the
applicant notes that “these were circumstances beyond [his] control.”  He
states he had just taken a shower when the CID arrived at his home and that
as he was rushed out of his room; he had just enough time to throw boots on
his bare feet.  He states in the confusion it never dawned on him to grab
his personal effects.  When the CID agent asked for his identification card
he did not have it with him, but was permitted to return to his room to
retrieve it.  He maintains that this is “constructive entrapment on the
part of the government that prevented [him] from avoiding this violation….”
 He asks if they charged him with not having his identification card, then
why did they not also charge him with being out of uniform?

11.  The applicant goes on in his application to cite seven different
incidents which he believes contributed to a biased attitude by members of
his chain of command including:

      a.  being assigned to Hawaii with less time remaining than other
Soldiers who had arrived prior to him.

      b.  having a battery commander from another battery who was still
under the influence of the battalion commander serve as the presiding
“judge” during his court-martial.

      c.  being frowned upon because he showed other Soldiers a quicker way
to disassemble and clean their gas masks thereby requiring his chain of
command to find something else for the Soldiers to do that day.

      d.  being denied an opportunity to attend classes to secure his high
school diploma until he started to intensify his request, only to find out
later that once his battalion commander discovered the training program was
created by the base commander then his commander began his own unit
training program.  He noted it was strange that he had to fight to get his
diploma and then his unit decided to implement their own program.

      e.  his unit mail clerk withholding of his income tax refund because
the unit mail clerk did not understand that simply because it was a
government check did not mean he had to wait until payday to receive the
check.


      f.  failing to salute his unit commander when he was in his physical
training outfit after being taught during boot camp to salute only when an
officer was in uniform and so informing his unit commander.


      g.  in lieu of serving time in the stockade he was sent to the
retraining brigade when he “spent approximately twelve weeks under
excessive restriction.” He notes that this was excessive punishment
relative to the characteristics of the charges.


12.  The applicant states that he served 3 years in the Ohio National Guard
without incident and his goal is to establish his qualifications for
reenlistment into the armed forces.  He notes he quit the Guard because he
realized his enlistment in the Guard had no bearing on his reenlistment
status in the Army, he had some financial difficulties, and was subjected
to “same sex harassment.”

13.  The applicant states that he has “shown ineffective counsel, denial of
due process, racial biased, administrative biased, application of a serious
charge on a frivolous incident, excessive punishment for the crime,
circumstances beyond [his] control, and inappropriate venue, prevented
[him] from a fair trial.”  He states these arguments are new evidence that
was not presented at the trial.

14.  The applicant provides no evidence in support of his request beyond
his own statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 August 1975.  The application submitted in this case is
dated
1 December 2004.

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.  Records available to the Board indicate that the applicant enlisted and
entered active duty on 21 September 1972.  He was 17 years old at the time
of his enlistment.  His GT (general technical) score was 86.

4.  By February 1973 the applicant had attained the rank of private first
class.  In April 1974, while assigned to Fort Carson, Colorado, he was
punished under Article 15 of the Uniform Code of Military Justice for
failing to go to his appointed place of duty.  His punishment included 14
days of extra duty and forfeiture of $88.00, which was suspended.

5.  A performance evaluation report, for the period September 1973 to
August 1974 showed that he was rated above average in two areas
(adaptability and duty performance) and average in the remaining four areas
(attitude, initiative, leadership and responsibility.)  His rater noted
that the applicant had performed all duties put on to him in a satisfactory
manner.
6.  On 16 April 1975 the applicant, while assigned to the 1st Battalion,
8th Field Artillery in Hawaii, was convicted by a summary court-martial of
stealing a timing light, valued at $23.00 which was the property of the
United States Government, derelict in the performance of his duties in that
he willfully failed to properly protect the vehicles in the impound lot,
and failing to have his identification card in his possession at all times.
 He was found not guilty of the charge of willfully damaging a 1969
Chevrolet, valued at $50.00, which was the property of the United States
Government.  His sentence included reduction to pay grade E-1, forfeiture
of $150.00, and confinement at hard labor for 30 days.

7.  The sentence was approved on 16 April 1975.

8.  On 6 August 1975 the applicant was released from active duty, with an
honorable characterization of service, under the provisions of Army
Regulation 635-200, paragraph 5-19.2.  He had 2 years, 9 months, and 23
days of active Federal service at the time and 23 days of lost time.

9.  Army Regulation 635-200 establishes the policies and procedures for the
separation of enlisted Soldiers.  Paragraph 5-19.2, in effect, at the time,
provided for the separation of enlisted personnel who have been transferred
to the United States Army Retraining Brigade for correctional training when
they have less than 3 months remaining to serve until ETS (expiration term
of service) upon completion of the correctional training.  Individuals
discharged under this provision were issued an honorable or general
discharge certificate.

10.  In June 1977 the applicant submitted a letter to officials at the
Army’s Enlistment Eligibility Activity requesting that his RE (reentry)
code be upgraded to permit him to return to active duty.  In that letter he
noted that he had only been stationed in Hawaii for approximately 4 months
when he “ended up pulling post guard at the impound lot” and that during
one of his shifts he “purposely took [his] nightstick and smashed out the
taillights of an automobile sitting outside the impound lot.”  He stated
that he did not “go around smashing out things like that” but noted that
the car sitting outside the lot “looked like junk” and that one of the
military policemen told him that most of those cars were never claimed.

11.  The applicant stated that most of the automobiles looked like junk so
“thinking nothing of it” he stepped over the barbwire and began looking
into some of the automobiles.  He states that in one of the cars he “saw an
instrument laying on the floor and picked it up and took it back to the
barracks.”  He wrote that “someone squealed on” him and he subsequently
received the summary court-martial.  He related briefly that he was found
guilty of dereliction of duty for the preceding incidents as well as for
not having his identification card in his possession.  He did note in his
letter that he felt the final charge was unfair as he had just come out of
the shower and was going to change clothes so had taken his wallet out of
his trousers.

12.  The applicant related that he was shipped to a retraining unit and
“got into more trouble” but did not expound on the trouble noting only that
it was embarrassing to explain.  However, he did state that he had been
recommended for an “unfitness discharge” but was successful in fighting
that discharge after appearing before a board.  He states that he tried to
stay in the service but was told to see a recruiter when he got home.  He
states, however, that when he approached the recruiter he was told he did
not have enough rank to reenlist so he enlisted in the National Guard.

13.  In his 1977 letter the applicant related that he had only been in
trouble once since being released from active duty and that was a charge of
car theft.  He states that he was actually only guilty of providing the
transportation, but was caught with the other individuals.  He also noted
that he had been “picked up for drunk and disorderly conduct” which caused
him to miss that year’s National Guard summer camp.

14.  Department of the Army Pamphlet 27-7 (Guide for Summary Court-Martial
Trial Procedure) notes that the function of a summary court-martial is to
exercise justice promptly for relatively minor offenses under a simple form
of procedures.  It states that the summary court-martial is the presiding
officer at all sessions of the trial and is responsible for ensuring that
the proceedings are conducted in a fair, orderly, and dignified manner.

15.  As part of the procedures, the applicant would have been advised by
the presiding officer that he had the right to submit in writing a petition
to the convening authority, and that after the convening authority took
action, his case would be reviewed by a judge advocate for legal error.
The applicant would have been advised that he could suggest, in writing,
legal errors for the judge advocate to consider and that after final action
had been taken in his case and he believed that there had been a legal
error he could request review of his case by The Judge Advocate General of
the Army.  The applicant would have been asked if he understood those
rights.

16.  Title 10, United States Code, Section 1552, which is the law governing
the correction of military records, precludes the Army Board for Correction
of Military Records from disturbing the finality of a court-martial.  It
may not retry elements of, or arguments presented before a court-martial,
or an appeal to a court-martial. It may not change the findings of a court-
martial, but may consider clemency on the court-martial sentence.  The
Board is also precluded from paying “damages” although claims against the
Government may be presented through the appropriate Federal court.

DISCUSSION AND CONCLUSIONS:

1.  The Board is precluded from changing the findings of the applicant’s
summary court-martial to show that he was not guilty of any of the charges
and/or that the court-martial and all specifications be stricken or
expunged from the record as “though it never happened.”  The Board can also
not award damages as the applicant requests.

2.  The Board is limited to issues of clemency as they pertain to restoring
the applicant’s rank, allowing payment of back pay and allowances, and
returning funds which were forfeited as part of the court-martial sentence.

3.  Notwithstanding the Board’s ability to act on those issues, as a matter
of clemency, the applicant, beyond his own assertions, has not provided any
credible evidence that any error or injustice occurred during his court-
martial proceedings which would warrant the clemency requested.

4.  The evidence available to the Board indicates that the applicant was on
guard duty and acted in a manner which was not consistent with the duties
expected of an individual in that position.  The arguments that he now
makes, nearly 30 years after the fact, are issues which he could have
raised during his appeal process.  The fact that he may not have raised
those issues at the time is not evidence of any error or injustice in the
court-martial.

5.  The applicant’s contention that relief is warranted because of
“ineffective counsel” is also not sufficiently mitigating nor confirmed in
evidence available to the Board.  The fact that the applicant may not have
been aware of this Board until recently is not evidence of any error or
injustice.  Had the applicant submitted an application to this Board
shortly after his court-martial conviction the limitations of the Board, as
they pertain to court-martial action, would still not have permitted the
relief the applicant now seeks, beyond the issues of clemency.

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 that requirement.


7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 August 1975; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
5 August 1978.  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

___WP__  ___JM___  ___LO __  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.




                                  _____ William Powers______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011580                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.00                                  |
|2.                      |106.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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