RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            2 September 2004
      DOCKET NUMBER:  AR2004102486


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Ronald J. Weaver              |     |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, in effect, that he be issued a DD Form 214
(Certificate of Discharge or Release from Active Duty) for the period
ending 27 March 1981 and that he receive all due back pay and allowances
from November 1961 until   27 March 1981.

2.  The applicant states, in effect, that the documents he provides prove
he was in the Army until 27 March 1981.

3.  The applicant provides his enlistment contract; a certificate of birth;
a Department of Veterans Affairs (VA) Medical Certificate dated 5 October
1998; a copy of his DA Form 24 (Service Record); two copies of his
corrected DD Form 214 for the period ending 12 June 1962; a letter dated 20
November 1972 appointing members to the Army Discharge Review Board (ADRB);
a letter from a counseling office in preparation for his ADRB hearing dated
2 September 1976; and a letter dated 27 March 1981 informing him of the
ADRB's decision to upgrade his discharge.

4.  The applicant also provides a letter from the Defense Finance and
Accounting Service (DFAS) dated 1 February 1999; a letter from his Member
of Congress dated 23 March 1999; a letter from DFAS dated 13 December 1999;
one page of a VA Rating Decision dated 28 October 2002; a letter from The
Chief of Legislative Liaison, Pentagon dated 25 February 2003; a letter
from the Army Review Boards Agency Support Division, St. Louis to his
Member of Congress; and a letter from the VA dated 4 September 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 February 1987 (the date the statute of limitations for
filing a claim against the Government expired).  The application submitted
in this case is dated 10 December 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.  The applicant enlisted in the Regular Army on 14 November 1958 for
three years, making his normal expiration term of service (ETS) 13 November
1961.

4.  In August 1961, as a result of the Berlin Wall crisis and under Public
Law
87-117, the applicant's normal ETS was involuntarily extended to 26
February 1962.

5.  On 13 November 1961, the applicant was promoted to Private First Class,
    E-3.

6.  On 14 December 1961, after the applicant's original ETS date but prior
to his new ETS date, he was apprehended by civilian authorities, tried, and
convicted of transferring marijuana unlawfully.  He was sentenced to 5
years confinement by the civil court.

7.  On 12 June 1962, the applicant was discharged, in pay grade E-1, with
an undesirable discharge, in absentia under the provisions of Army
Regulation   635-206 for misconduct – conviction by civil court.  He had
completed 3 years and 28 days of creditable active service and had 181 days
of lost time as a result of civil confinement.

8.  In January 1973, the ADRB denied a request from the applicant to
upgrade his discharge.

9.  On 23 February 1981, the ADRB reconsidered a request from the applicant
to upgrade his discharge.  The ADRB found that the applicant's discharge
was proper based on the absence of any prejudicial error in the discharge
process.  However, the majority of the ADRB found that the characterization
of his discharge was inequitable given his previous relatively excellent
record, the circumstances of the charge for which he was convicted, and his
sentence to      5 years in a Federal Reformatory as a youthful offender.
The ADRB voted, in      a 4 to 1 decision, to upgrade his discharge from
undesirable to general under honorable conditions.

10.  The applicant's DD Form 214 was reissued as a result of the ADRB
action.  The new DD Form 214 reflected his rank and grade as Private First
Class, E-3.

11.  By letter dated 27 March 1981, the Office of the Adjutant General and
the Adjutant General Center informed the applicant of the ADRB's decision.
That Office also informed him he could apply to the U. S. Army Finance and
Accounting Center for any monetary benefits to which he could be entitled
by virtue of the change in his discharge.

12.  By letter dated 1 February 1999, DFAS informed the applicant that it
   could not process his claim for military pay due for service during the
period      13 November 1961 through 23 February 1981.  He was informed
that, since his claim was not received until 1999, it was barred by the
statute of limitations informally know as the "Barring Act."  DFAS also
informed him that the capability to obtain records for active duty soldiers
discharged in 1987 or earlier was no longer available.

13.  Army Regulation 600-8-19 prescribes policies and procedures governing
promotion and reduction of Army enlisted personnel.  In pertinent part, it
states that when the separation authority determines that a soldier is to
be discharged from the Service under other than honorable conditions, the
soldier will be reduced to the lowest enlisted grade.

14.  Army Regulation 600-8-10 governs leave and pass policy and procedures.
 In pertinent part, it states that soldiers discharged under other than
honorable conditions will forfeit all unused leave to their credit at the
time of discharge.

15.  Title 31 U. S. Code, section 3702, also known as the barring statute,
prohibits the payment of a claim against the Government unless the claim
has been received by the Comptroller General within 6 years after the claim
accrues. Among the important public policy considerations behind statutes
of limitations, including the 6-year limitation for filing claims contained
in this section of Title 31, U. S. Code, is relieving the Government of the
need to retain, access, and review old records for the purpose of settling
stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's normal ETS would have been
13 November 1961; however, as a result of the Berlin Wall Crisis his ETS
was involuntarily extended through Public Law 87-117 to 26 February 1962.

2.  During the period of the applicant’s involuntary extension, he was
arrested by civil authorities, tried and convicted by a civil court, and
sentenced to 5 years confinement.  As a result of his conviction by a civil
court, he was administratively discharged from the Army on 12 June 1962.
His administrative separation was accomplished in compliance with
applicable regulations.

3.  In February 1981, the ADRB found sufficiently mitigating circumstances
to upgrade the characterization of the applicant's discharge from an
undesirable to a general discharge.  However, the ADRB determined that his
12 June 1962 discharge itself was proper.  The decision of the ADRB did not
affect the date of his discharge, only the characterization of his
discharge.

4.  When the applicant was notified that the ADRB had upgraded his
discharge, he was also informed that he could apply to the U. S. Army
Finance and Accounting Center for any monetary benefits to which he could
be entitled by virtue of the change in his discharge.  It appears that he
would have been entitled to payment of accrued leave, at pay grade E-3, by
virtue of his upgraded discharge.

5.  In 1981 or even 1987, it might have been possible to reconstruct the
applicant's leave record.  It appears that, 17 years later, it is not
possible to do so.  This lack of records is one reason for the statutory
prohibition of paying a claim against the Government unless it is filed
within 6 years of the date the debt accrues.  In this case, the applicant's
debt accrued when the ADRB upgraded his discharge in 1981.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 February 1987 (the date the statute
of limitations for filing a claim against the Government expired);
therefore, the time for the applicant to file a request for correction of
any error or injustice expired on 21 February 1990.  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

__wtm___  __wdp___  __rjw___  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.




            __Walter T. Morrison__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102486                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040902                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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