RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20060725
      DOCKET NUMBER:  AR20050013625


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 his undesirable discharge (UD),
characterized as under other than honorable conditions (UOTHC), be
upgraded.

2.  The applicant states, in effect, that he was discharged without the
advice of counsel, an opportunity to present evidence or to appear before a
board.  He also states that some party unknown to him signed a waiver of
rights.  He did not sign the waiver.  He also states that he was discharged
contrary to law and Army Regulation on the basis of a false statement filed
in his records by an unknown party.

3.  The applicant provides a sworn statement in support of his request.  He
states that his statement is based on his own recollection and on the
documents appearing in his military service record and other records which
are included.  He states that he completed basic training (BT) and advanced
individual training (AIT) at Fort Dix, New Jersey.  He had severe pain on
the right side of his stomach.  When he was unable to obtain medical
attention from the Army, he went home to obtain medical care.  While at
home in an absent without leave (AWOL) status, he had an appendectomy at
Wilmington Hospital, Wilmington, Delaware.

4.  He later received two nonjudicial punishments under the provisions or
Article 15, under the Uniform Code of Military Justice (UCMJ), for AWOL.
While awaiting orders, he became ill.  He departed Fort Dix for his home in
Wilmington, Delaware.  On 1 August 1972, he sought medical treatment that
the Army would not provide for him.

5.  While at home in an AWOL status, he was arrested for robbery,
conspiracy, and assault on 16 September 1972.  He was confined by civilian
authorities who did not turn him over to military authorities.  The Army
was notified of his confinement awaiting trial by the Federal Bureau of
Investigation (FBI) on or about 3 November 1972.  He was convicted of two
counts of robbery on 26 March 1973 and sentenced to 3 years confinement at
the Delaware Correctional Center.

6.  While confined, at the Delaware Correctional Center, he received notice
on 3 October 1973 from counsel at the US Army Personnel Control Facility
(PCF), Fort Meade, Maryland.  He was informed by counsel that he was
recommended for administrative separation for robbery.


7.  He signed a request for representation by military counsel, to make a
statement in his own defense, and to appear before a board of officers on
5 October 1973, which was returned to the PCF.  No further action was taken
with respect to an administrative separation.

8.  While still confined, at the Delaware Correctional Center, on
10 January 1974, he received a second notice from the PCF that he was
recommended for separation for robbery.

9.  He signed a request for representation by military counsel, to make a
statement in his own defense and to appear before a board of officers on
14 January 1974.  No further action was taken with respect to his
administrative separation.

10.  While confined, at the Delaware Correctional Center on 25 April 1974,
he received a third notice from the PCF, that he was being processed for a
UD.  However, no action was taken on this notice.

11.  He was released from confinement on 4 August 1974 and returned to
military control at Fort Meade.

12.  On 5 August 1974, the applicant went to the dispensary for pain in his
testicles.  He saw a physician who diagnosed his problem as variocele (an
enlargement of the veins within the scrotum).

13.  Between 19 August and 23 September 1974, he was seen on several
occasions at the dispensary for minor complications.

14.  On 6 September 1974, he signed a document requesting assistance of
military counsel, the right to present evidence, and the right to appear
before a board of officers.

15.  On 2 October 1974, he was released from confinement and returned to
military control.  He was reassigned to Fort Eustis, Virginia, for training
in motor transportation, on the job (sic on the job training [OJT]).

16.  On 7 October 1974, charges and specifications were served on him for
violation of Article 86, AWOL due to his arrest, detainment, and
incarceration.

17.  A bar to reenlistment was submitted on 14 February 1975 and was
approved on 21 March 1975.

18.  On 4 March 1975, he was given a pre-separation physical which
indicated that his vision was correctable to 20/40 and that his ankle
injury continued to bother him.

19.  On 5 March 1975, he executed a statement requesting appointment of
counsel to represent him, the right to present evidence, and appear before
a board of officers.

20.  On 10 March 1975, he received notice from his commander that he was
being processed for a UD.  He was advised of his rights to counsel, to
present evidence, and to appear before a board of officers.  The grounds
for separations were alleged to be his incarceration, an auto accident, in
which he was driving another Soldier without permission, and AWOL.  On that
same day, he acknowledged receipt of notice to discharge him for unfitness.

21.  He requested counsel from Fort Meade, who had been his previous
defense counsel [during his special court-martial proceedings, adjudged on
7 October 1974, at Fort Meade], to represent him.

22.  On 25 March 1975, the acting commander waived his rehabilitative
transfer.

23.  On 31 March 1975, he was denied assistance of counsel of his choice,
from Fort Meade, to represent him.  A mental status examination was
prepared prior to separation that noted that he had no mental health
problems.

24.  On 14 May 1975, a document was prepared which indicates that he waived
his right to counsel, right to present evidence, and the right to appear
before a board of officers.  This document shows the initials "AW" for each
selection and a signature.  However, the applicant does not believe he
signed this document. 

25.  On 21 May 1975, the separation authority approved his separation.  He
elaborates on several incidents relating to his headaches, eyes and foot
trouble that began in mid February and continued in April 1975.  He was
seen at the dispensary for his complications which were also indicated on
his Standard Form 93 (Report of Medical History).

26.  He applied to the Army Discharge Review Board (ADRB) on 31 October
1976.  He attached letters of support from his parole officer, his
minister, his counselor, and his employer.  He did not challenge his UD on
the ground that it was given contrary to regulation and due process of law
because he did not know that his rights had been violated.  He later filed
another application in response to a notice from the Department of Defense
(DOD).  He was scheduled to appear before an ADRB traveling panel, but
failed to go to the hearing.  His case was considered on a records review
and his discharge upgrade was denied.  He filed a third application on
26 October 1979.

27.  On 12 January 1981, he had a personal appearance hearing before the
ADRB.  He gave a sworn testimony and was not shown the waiver of rights,
dated 14 May 1975.  He was asked about signing the waiver of rights and
informed the board that he did not recall signing the waiver of rights.

28.  In April 2005, his attorney discovered that the ADRB panel that heard
his initial discharge review petition in 1978 erroneously discovered that
all procedural steps occurred.  He never signed the waiver of rights dated
14 May 1975.  He examined the document and denied under oath that he had
signed it.

29.  He requests that the Board reopen his case on the discovery that his
original discharge was the result of an error of fact and denial of due
process of law, that the ADRB erroneously believed that he had waived his
right to a full and fair hearing before a board of officers.  He further
requests that the Board change his discharge status from UD to honorable or
general discharge (GD), under honorable conditions.

30.  He also respectfully requests that the Board correct his records to
show that his UD, dated 23 May 1975, was erroneously issued without advice
of legal counsel and that he was entitled to a full hearing before a board
of officers, at Fort Eustis.

31.  The applicant provides several documents from his military personnel
file, and a brief, in support of petition for change of discharge status
from his attorney, in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel provides a brief, in support of petition for change of
discharge status, to the applicant.

2.  Counsel states the issues are:
      I.  Should the Board waive the 3-year statute of limitation and re-
open the applicant's case?

      ll.  Was the applicant improperly discharged without a full and fair
hearing?

      III.  Has the applicant shown by later conduct that any misconduct
during service was an aberration?

      IV.  Should the applicant's records be corrected to reflect a
discharge under honorable conditions?

3.  Counsel provides a jurisdictional statement.  Counsel states that this
is the applicant's third request for correction of his discharge records.
Counsel contends that the applicant was wrongfully discharged without
waiving a full and fair hearing before a board of officers and did not
accept an administrative discharge for misconduct under less than honorable
conditions.  Therefore, the applicant believes that he should be considered
for an upgrade to an honorable discharge or a GD under honorable
conditions.

4.  Counsel states that his client contends that his discharge does not
entitle him to Veterans Administration (VA) benefits which is an injustice
because of the lack of fair procedures accorded him in considering his
original discharge for misconduct.  Counsel adds that the applicant
contends that since his release from active duty (AD), he has been an
exemplary citizen in the State of Delaware, which is supported by letters
of endorsement from employers and his minister.

5.  Counsels states, that finally under the provisions of the Privacy Act,
the applicant requests this Board, as custodian of his military records,
correct the record of his discharge to show that it was an injustice issued
without due process of law and contrary to regulation, and entering in its
place a notation of discharge as under honorable conditions.  These are
grounds for the Board to use its discretion and waive the 3-year statute of
limitations in this matter and hear this petition on the merits.

6.  Counsel provides a list of detailed facts that were included and
discussed in the applicant’s sworn statement.

7.  Counsel provides a summary of argument.

      Counsel states that the applicant seeks to re-open his application
previously filed in 1977, 1978, and 1981.  His original application sought
review of his 23 May 1975 UD.  This application to re-open the original
proceedings in discharge review was based on hitherto undiscovered error of
law and fact.  The applicant contends that his discharge was issued
contrary to the Military Personnel Manual's (MILPERMAN) instructions for
administrative separation and amounted to a denial of due process of law
because he was discharged on the basis of a spurious waiver of rights dated
14 May 1975.  The applicant contends that he never signed a waiver of full
and fair hearing before an administrative discharge board.  The document
purporting to be his waiver was signed by someone unknown and placed in his
file in order to by-pass his request for counsel, to present evidence, and
to have a hearing before a board of officers.  He was discharged without a
personal hearing.  There was no record of any advice given to the applicant
by a legal officer on the effect of waiver of full and fair hearing.

      The applicant's request to re-open his discharge review application
was also based on letters attesting to his good character that demonstrate
he is now a good citizen.  Some of these letters were before the ADRB in
1981, and were important considerations in assessing the fundamental
fairness of his 1972 discharge.

      As a general rule, the Army is bound by its own regulations and a
Soldier who is discharged in violation of these regulations has been
unlawfully discharged.

      MILPERMAN 1910-140 (Separation by Reason of Misconduct-Pattern of
Misconduct) permits separation from the service on the ground that the
Soldier had committed two or more serious disciplinary infractions (a court-
martial conviction, non-judicial punishment, or civilian conviction or any
combination of two or more such offenses).  It restates long-standing Army
policy.  The only way that the applicant could have been discharged without
a full and fair hearing under the law as it existed in 1972 would have been
by signed, written waiver, and acceptance of a misconduct discharge.  The
applicant never signed a waiver.  The purported waiver in his military
service records was inserted by an unknown party and was not his knowing,
intelligent waiver of rights.  Therefore, the applicant's discharge was
given without due process of law under the Fifth Amendment to the United
States (US) Constitution and was void, unless the Board finds that the
discharge was given contrary to regulation and sets it aside.

      Finally, the applicant contends that the Privacy Act requires that
his service records be corrected to show an administrative separation under
honorable conditions.  The applicant’s service records contain a spurious
waiver of rights that should be removed from his record.  Applicant’s
discharge without knowing, intelligent waiver of rights was void.  The
records do not contain the findings of the administrative board
recommending administrative separation for misconduct.  The record contains
a fabricated document purporting to be the applicant’s waiver of a full and
fair hearing.  The Board has the authority to make corrections for
discharged Soldiers under the Privacy Act.  The applicant is eligible for
this relief because the Army erroneously recorded his discharge as less-
than-honorable by failing to amend his discharge in 1983-1985; this error
wronged the applicant by denying his access to a multitude of VA benefits;
and the applicant discovered the error in the 1981 ADRB proceedings in
2005.  The 1981 ADRB found that the applicant had been discharged without
any procedural irregularity, when in fact he was discharged on the basis of
a false waiver of rights.  The Army did not follow its own regulations in
effecting the applicant’s discharge because it based the discharge on a
false document.  The applicant did not discover this until 2005.
Therefore, the applicant’s record is currently erroneous and should be
corrected to reflect a discharge under honorable conditions.

8.  Counsel argues:

I.  Should the Board waive the 3-year statute of limitations and re-open
the applicant’s case?

      The applicant seeks review of his 23 May 1975 UD administrative
discharge because his discharge was a denial of due process of law.  The
discharge was obtained over the applicant’s repeated requests for legal
assistance and a full and fair hearing before a board of officers on the
strength of a waiver document that the applicant did not sign.  The
applicant had requested advice of counsel, the right to present evidence,
and the right to have a hearing before a board of officers twice in 1974.
The applicant was discharged without a hearing.  There was no record of any
advice given to the applicant by a legal officer on the effect of waiver of
full and fair hearing.  Even if the applicant was dragooned into signing a
waiver in some way, he was never advised of the effect of a waiver and a
UD.  The record in fact shows that the applicant never received any
counseling from a legal specialist relating to his discharge status before
4 May 1975, the date the applicant allegedly executed a waiver of rights.

      Counsel argues that MILPERMAN §910-400 states that the applicant must
first be notified of the commander’s intention to process him for an
administrative discharge.  It restates long-standing US Army personnel
policy mandates that were in effect when the applicant was initially
considered for administrative discharge.  According to the same source, a
Soldier may be administratively discharged by notification only, without a
full and fair hearing before an administrative board if the "least
favorable characterization of service possible is General."  Despite the
regulations, the applicant was discharged without a full and fair hearing.
A spurious waiver was the "excuse" for his administrative separation
without a hearing.
      The applicant’s discharge was issued contrary to Army Regulation and
was a denial of due process of law as guaranteed by the Fifth Amendment to
the US Constitution.  The applicant furnished the ADRB with letters of good
character from his counselor, his minister, and his employer.  While not
sufficient in itself to change the character of the discharge, those
documents showed that the applicant had turned his life around since
leaving the Army and was a good citizen.  The applicant has a substantial
probability of prevailing on his claim, a factor that should be considered
by the Board in deciding to permit a re-opening of his case.

      Finally, the applicant’s claim raised fundamental issues relating to
injustice and was similar to the kind of substantial cases that the Board
has previously exercised its discretionary right to waive the 3-year period
of limitations after discovery of the injuries was received.  The Board may
not arbitrarily and capriciously refuse to review cases such as the
applicant’s that involve substantial claims of unfairness and injustice.
The Board’s review of the applicant’s request for waiver of the 3-year
statute of limitations period should include the reasons for delay and
merits of the case.

II.  Was the applicant improperly discharged without a full and fair
hearing?

      As a general rule, the Army was bound by its own regulations and a
Soldier who was discharged in violation of these regulations has been
unlawfully discharged.   MILPERMAN, 1910-140 (separation by reason of
misconduct-pattern of misconduct) permits separation from the service on
the ground that the service member had committed two or more serious
disciplinary infractions (a court-martial conviction, non-judicial
punishment, or civilian conviction or any combination of two or more such
offenses).  It restates long-standing Army policy.  The only way that the
applicant could have been discharged without a full and fair hearing under
the law as it existed in 1975 would have been a signed, written waiver and
acceptance of a misconduct discharge.  The applicant has stated under oath
that he never signed a waiver and specifically repudiates the alleged
waiver document in his service file.  Therefore, his discharge was given
without due process of law under the Fifth Amendment to the U. S.
Constitution and was void, unless the Board finds that the discharge was
given contrary to regulation and sets it aside.

III.  Has the applicant shown by later conduct that any misconduct during
service was an aberration?


      Counsel states the Board is entitled to consider the history of a
Soldier after discharge for the purpose of determining the effect of a
discharge on the Soldier's life.  Since 1975, the applicant has been a good
citizen, as attested to by the letters of good character submitted to the
ADRB.  The applicant is a respected member of the Wilmington, Delaware,
community.  He is a person in whom others repose trust.  This record is not
the record of a shirker.  The applicant has acknowledged his youthful
mistake and has made amends to the community wherever he can do so.

IV.  Should the applicant’s record be corrected to reflect a discharge
under honorable conditions?

      The Privacy Act provides a means by which federal employees,
including Soldiers, may seek to correct errors in their employment
histories.  The applicant’s service records do not show the appropriate
documentary support for an administrative discharge under less than
honorable conditions.  The records do
not contain the findings of the administrative board recommending
administrative separation for misconduct, nor do the records show a
valid, knowing waiver of a full and fair hearing.  The Board has the
authority to make records corrections for discharge Soldiers under the
Privacy Act.   Bergman v. United States (751 F.2d 314, 316 (10th Cir.
1984), cert. Denied, 474 U. S. 945 (1985) established the test for
accrual of a Privacy Act claim for relief.  The applicant met the
Bergman test because he showed three elements to support a timely claim
for relief: (a) The Army erroneously recorded his discharge as less-than-
honorable by failing to amend his discharge in 1983-1985; (b) This error
wronged the applicant by denying his access to a multitude of VA
benefits; and (c) The applicant has for the first time discovered the
error in the 1981 ADRB proceedings that incorrectly showed that the Army
had followed its own regulations in effecting his administrative
discharge, when in fact it had not done so.  The applicant knew or had
reason to know that these records contained the error for the first time
in 2005 when counsel obtained a Freedom of Information Act copy of the
1981 ADRB proceedings.  Therefore, the applicant’s record is currently
erroneous and should be corrected to reflect a discharge under honorable
conditions.

9.  Counsel concludes by stating that the applicant was entitled to have
his discharge re-opened for purposes of awarding him a discharge under
honorable conditions.  His 1975 administrative discharge was fatally flawed
because he was denied a full and fair hearing before a board of officers
and assistance of legal counsel when he specifically requested such hearing
and assistance more than once.  Some unknown person fabricated a waiver of
rights for the applicant’s file in order to get the applicant discharged
without a board of officers hearing.  The "administrative error" that
appears in the Commanding General, US Transportation Center’s order of
administrative separation, was a denial of due process of law under the
Fifth Amendment to the U.S. Constitution as well as a breach of Army
Regulations.  Since 1975, the applicant has become a respected citizen of
his community and is a good person of good moral character as attested to
by letters in support of his application for discharge review.  He has
overcome whatever flaws of character may have contributed to his disrespect
for Army regulations in 1975.  For all these reasons, the Board should
grant the applicant’s petition and change his discharge to honorable.

10.  Counsel provides no additional document in support of the applicant’s
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 May 1975, the date of his discharge.  The application
submitted in this case is dated 2 September 2005.

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.  The applicant's record contains a copy of his entrance examination,
dated 3 March 1972, which indicated that he was in good health and given a
physical profile of 111111 for enlistment.

4.  The applicant’s military records show he entered active duty on
24 March 1972, as a wheel vehicle mechanic (63B), for 3 years.

5.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification
Record), shows that he was AWOL from 15 to 17 April 1972 (3 days).

6.  On 24 May 1972, he was punished under Article 15, UCMJ, for being
absent without leave (AWOL) from 1 May to 17 May 1972.  His punishment
consisted of a forfeiture of pay.
7.  On 25 July 1972, he was punished under Article 15, UCMJ, for AWOL from
2 July to 22 July 1972.   His punishment consisted of a forfeiture of pay
and 45 days restriction and extra duty.

8.  The applicant departed AWOL again on 1 August 1972.

9.  On 16 September 1972, the applicant was arrested by civil authorities
in Wilmington, Delaware.  He was charged with robbery, conspiracy and
assault with intent to commit robbery.  He was sentenced to 3 years in the
Delaware State Correctional Institute commencing on 26 March 1973.

10.  On 3 October 1973, the applicant's commander recommended him for
elimination under the provisions of Army Regulation 635-206, for his civil
conviction.  He requested representation by military counsel, declined
civilian counsel, to present his case before a board of officers, and
elected to submit a statement in his own behalf.  He requested to appeal
his conviction of robbery but had not appealed.

11.  On 25 April 1974, the commander recommended the applicant for
separation under the same provisions for robbery and conspiracy, while he
remained confined.

12.  The applicant was released from civil confinement on 31 July 1974.  He
was returned to military control on 4 August 1974.

13.  In accordance with his plea, he was found guilty by a special court-
martial on 7 October 1974, of being AWOL from 1 August 1972 to 4 August
1974.  The period from 16 September 1972 to 31 July 1974 is considered as
Confined Civil Authorities (CCA).  His sentence consisted of a forfeiture
of pay for two months.

14.  On 26 February 1975, he was punished under Article 15, UCMJ, for being
AWOL from 18 to 25 February 1975.   His punishment consisted of a
forfeiture of pay and 14 days restriction and extra duty.

15.  Item 21 (Time Lost), of his DA Form 2-1, also shows that he was AWOL
from 5 to 12 May 1975 (8 days).

16.  The applicant underwent a separation medical examination on 4 March
1975.  He was found qualified for separation.
17.  The applicant underwent a mental status evaluation which is undated.
His mental status evaluation revealed a fully oriented, fully alert
individual, whose behavior was normal.  His mood or affect was level,
thinking process was clear, his thought content was normal, and his memory
was good.  The psychiatrist determined that he could distinguish right from
wrong, possessed the mental capacity to understand and participate in board
proceeding and that the applicant met the retention standards prescribed in
Army Regulation 40-501, chapter 3.

18.  On 5 March 1975, the applicant was advised by counsel of the basis for
contemplated action to accomplish his separation for unfitness under the
provisions of Army Regulation 635-200.  After consulting with counsel, he
requested military counsel to represent him, present his case before a
board of officers, submit a statement in his behalf, and personal
appearance before a board of officers.  He requested counsel from Fort
Meade, who had been his previous defense [during his special court-martial
proceedings, adjudged on 7 October 1974, at Fort Meade], to represent him.


19.  On 10 March 1975, the applicant acknowledge receipt of the intent to
discharge him from the service under he provisions of Army Regulation 635-
200, chapter 13.

20.  On 14 March 1975, the commander recommended that the applicant be
required to appear before a board of officers.  He based his recommendation
on the applicant's frequent incidents of a discreditable nature with civil
or military authorities.

21.  On 21 March 1975, the applicant was barred from reenlistment.

22.  On 25 March 1975, the acting commander waived his rehabilitative
transfer.

23.  On 31 March 1975, he was denied assistance of counsel of his choice.
His counsel of choice was unavailable due to the following reasons:  (a)
Any representation by counsel, of choice, would involve travel to and time
spent at Fort Eustis in preparation and presentation of the applicant's
defense.  Thus considerable time and money would be lost at the outset; (b)
The counsel, of choice, is currently the Chief Defense Counsel, and has the
task of supervision of all defense counsel assigned to their Headquarters,
as well as handling all administrative matters for the Defense Counsel
Branch.  Counsel, of choice, also had a heavy caseload at that time, and
the Defense Counsel Branch was currently understrength (only four
attorneys) and would be augmented by three recently commissioned and
inexperienced attorneys in mid-April 1975.  Those new defense counsels
would have to be trained, and counsel, of choice, supervisory skills would
be greatly required during the next few months.  Because of the
unavailability of sufficient defense counsel to fully and adequately
represent Soldiers at Fort Meade, representation of Soldiers stationed
elsewhere would play a heavy burden on this installation; and (c) It should
be noted that counsel, of choice, had been requested by other Soldiers not
stationed at Fort Meade who were pending general courts-martial.  Those
requests for counsel of choice had also been denied due to counsel of
choice's extensive responsibilities as Chief Defense Counsel.

24.  On 14 May 1975, the applicant consulted with counsel regarding the
basis for the contemplated action to accomplish his separation for
unfitness under the provisions of Army Regulation 635-200, chapter 13, and
its effect; of the rights available to him and the effects of any action
take by him in waiving his rights.  He waived consideration of his case by
a board of officers, personal appearance before a board of officers,
representation by counsel, and elected not to submit a statement in his own
behalf.  He acknowledged that he might encounter substantial prejudice in
civilian life and might be ineligible for many or all benefits administered
by the Veterans Administration (VA) if an UD were issued.  He understood
that he might, up until the date the discharge authority directs or
approves his discharge, withdraw the waiver and request that a board of
officers hear his case.  He retained a copy of this statement.  This
document had the initials "AW" for each selection and the applicant’s and
counsel‘s signature.

25.  On 21 May 1975, the separation authority, a major general (MG) with
general court-martial authority, approved the recommendation for the
applicant's discharge and directed that he be furnished an UD.  The
applicant was discharged on 23 May 1975.  He had a total of 1 year and
2 days of creditable service and 778 days of lost time due to AWOL and
confinement.

26.  The applicant applied to the ADRB for an upgrade of his discharge on
31 October 1976.  His request was denied on 1 December 1977.

27.  On 22 January 1978, he reapplied for an upgrade of his discharge.  He
was schedule to appear before a traveling panel but failed to go to the
hearing.  His request was denied on 3 June 1978.

28.  The applicant reapplied for the third time on 25 January 1980.  He had
a personal hearing on 12 January 1981.  He was cross examined by counsel
and stated that he did not recall waiving his rights for a board of
officers. The ADRB concluded that his discharge was both proper and
equitable and denied his request on 22 May 1981.

29.  Army Regulation 635-200 sets forth the policy and prescribes the
procedure for administrative separation of enlisted personnel.  Chapter 13,
in effect at that time, applied to separation for unfitness and
unsuitability.  At that time, paragraph 13-5a(1) provided for the
separation of individuals for unfitness (frequent incidents of a
discreditable nature with civil or military authorities).
When separation for unfitness was warranted, an undesirable discharge was
issued by the separation authority.

30.  Paragraph 13-4 covers the authority to order separation for unfitness
and unsuitability.  It states that commanders who exercise general court-
martial authority are authorized to convene a board of officers for
unfitness and unsuitability and to order separation.  This authority,
including the authority to direct an undesirable discharge for reason of
unfitness, may be delegated to a general officer in command who has a judge
advocate on his staff for cases arising in that command.

31.  Paragraph 13-17 states, in pertinent part that, on receiving a
recommendation for unfitness, the commander exercising general court-
martial jurisdiction may take the following action:  disapprove the
recommendation and return the case to the originator for disposition by
other means; disapprove the recommendation relating to unfitness and
convene a board of officers; or convene a board of officers to determine
whether the individual should be separated for unfitness.  When the board
hearing has been properly and effectively waived, direct separation of the
individual for unfitness.

32.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

33.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.


34.  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 evidence of record shows that the applicant was arrested by civil
authorities and was charged with robbery, conspiracy, and assault with
intent to commit robbery. He was sentence to 3 years in civilian
confinement.  He was recommended for separation under the provisions of 635-
206, for civil conviction, while he remained confined.  He requested to
appeal his conviction of robbery; however, it had not been appealed.  No
further action was taken with respect to an administrative discharge.

2.  The applicant remained on AD and was later found guilty by a special
court-martial for AWOL and received NJP for AWOL.  He was recommended for
separation under the provisions of Army Regulation 635-200, chapter 13, for
unfitness.  He requested military counsel to represent him, present his
case before a board of officers, submit a statement in his behalf, and
personal appearance before a board of officers.  He requested counsel from
Fort Meade, who had been his previous counsel [during his special court-
martial proceedings, adjudged on 7 October 1974, at Fort Meade], to
represent him.

3.  The applicant acknowledged receipt of his discharge and the commander
recommended that he appear before a board of officers.  His rehabilitative
transfer was waived.  He was denied assistance of counsel of his choice who
was unavailable for several reasons.  The applicant was notified of the
unavailability and the reasons therefore of his counsel of choice.





4.  The applicant consulted with counsel, Fort Eustis, Virginia, regarding
the effects of his separation, of the rights available to him, and the
effects of the action taken by him in waiving his rights.  He waived
consideration of his case by a board of officers, personal appearance
before a board of officers, representation by counsel, and elected not to
submit a statement in his own behalf. 

5.  The applicant was advised of the effects of a UD and that he might be
deprived of many or all Army and VA benefits.  He understood that he might,
up until the date the discharge authority directs or approves his
discharge, withdraw the waiver and request that a board of officers hear
his case.  The waiver of rights document contained his initials "AW" for
each selection and the applicant's and counsel's signature. 

6.  According to regulation, the MG, exercising general court-martial
authority, was entitled to take the following action:  disapprove the
recommendation and return the case to the originator for disposition by
other means; disapprove the recommendation relating to unfitness and
convene a board of officers; or convene a board of officers to determine
whether the individual should be separated for unfitness.

7.  A review of the 14 May 1975 waiver of rights document shows that the
applicant's rights were properly and effectively waived.

8.  The applicant’s separation was approved by a MG, exercising general
court-martial authority, and he was discharged and furnished a UD.

9.  The applicant applied to the ADRB for an upgrade of his discharge on
31 October 1976.  The applicant's request was denied on 1 December 1977.
He reapplied on 22 January 1978 for an upgrade of his discharge.  He was
scheduled to appear before a traveling panel but failed to go to the
hearing.  His request was denied on 3 June 1978.

10.  The applicant reapplied to the ADRB for the third time on 25 January
1980.  He had a personal hearing on 12 January 1981 and was cross examined
by counsel.  He stated that he did not recall waiving his rights for a
board of officers. After careful review of all evidence and available
records, the ADRB concluded that his discharge was both proper and
equitable and his request was denied on 22 May 1981.

11.  After his discharge, 30 years later, the applicant requested the
assistance of counsel.  Counsel argued that there were four separate issues
for discussion regarding the applicant's case to be considered.

12.  Counsel contends that the Board should waive the 3-year statute of
limitations and reopen the applicant's case.  Counsel argues that the
applicant sought review of his discharge because it was a denial of due
process of law.  The discharge was obtained over the applicant's repeated
requests for legal assistance and a full and fair hearing before a board of
officers on the strength of a waiver document that the applicant did not
sign.  

13.  Counsel argued that the applicant requested advice of counsel twice in
1974 and was discharged without a hearing and there was no record of any
advice given to the applicant by a legal officer on the effects of waiver
of a full and fair hearing.  The applicant was never advised of the effects
of a waiver and a UD.

14.  Counsel stated that the applicant was discharged without a full and
fair hearing.  However, according to MILPERMAN, 1910-140, it restated long-
standing Army Policy.  It indicated that the only way the applicant could
have been discharged without a full and fair hearing under law would have
been to sign a written waiver and acceptance of a misconduct discharge.

15.  It is noted that the applicant's waiver of rights document dated
14 May 1975, clearly shows that he waived his rights, and understood the
consequences of a UD, by initialing each section, and that he understood he
could withdraw his waiver and request a board of officers to hear his case.
 This document was signed by him and his counsel.

16.  Counsel contends that the applicant has shown by later conduct that
any misconduct during service was an aberration.  Counsel felt that the
Board was entitled to consider the history of the applicant's post service
conduct after discharge to assist in determining the effect of a discharge
on his life.  His request was based on letters attesting to his good
character and demonstrated that he is now a good citizen.  These documents
were seen before the ADRB in 1981, and were important considerations in
assessing the fundamental fairness of his UD. 





17.  Counsel contends that the applicant's discharge should be corrected to
reflect a GD, under honorable conditions.  He states that the applicant was
entitled to have his discharge re-opened and his discharge was fatally
flawed because he was denied a full and fair hearing and additional
assistance of legal counsel more than once.  He elaborated that some
unknown person fabricated a waiver of rights for the applicant's file in
order to get the applicant discharged without a board of officers hearing.
The administrative error was a denial of the applicant's Fifth Amendment as
well as a breach of Army regulations.  Counsel also elaborated on the
applicant's character and that he has overcome whatever flaws of character
that may have contributed to his disrespect for Army regulation in 1975.

18.  Counsel concluded that the applicant's service records did not show
the appropriate documentary support for an administrative discharge under
less than honorable condition.  Counsel also concluded that the record did
not contain the finding of the administrative board recommending
administrative separation for misconduct, nor did the records show a valid,
knowing waiver of a full and fair hearing.  Counsel further concluded that
the applicant discovered the error in 2005 with his assistance.

19.  The applicant stated that he had severe pains on the right side of his
stomach, that he was seen for several other minor ailments, and that there
was a lack of medical treatment while serving on AD.  However, medical
evidence shows that he was qualified for separation and had no medical
difficulties.

20.  Based on the foregoing, and a review of the preponderance of evidence,
the applicant is not entitled to an upgrade of his UD to GD, under
honorable conditions.  His arrest by civil authorities for robbery,
conspiracy, and assault with intent to commit robbery, his special court-
martial and disciplinary action for AWOL are too serious to be excused or
to warrant relief.

21.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 22 May 1981.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 21 May 1984.  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

__LD____  __AR ___  __PMT__  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.




                                  _____ Allen L. Raub _______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050013625                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060725                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19750523                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 13-5a(1)            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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