RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060014200 


	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.


x

	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 his court-martial be overturned and that his rank be restored.  He also requests, in effect, that he be advanced on the retired list to pay grade E-7.  He requests to appear before the Board.

2.  The applicant states, in effect, that an injustice has occurred in his case.  He described some of the conditions he endured as a Prisoner of War (POW) in Korea and the difficulties he suffered readjusting to life.  He stated that he started drinking heavily, had horrible nightmares, and frightening flashbacks.  In addition, he had a hard time thinking or rationalizing.  He also stated he was reassigned to Korea and his nightmares and flashbacks became more severe.  He described the incidents which led to his court-martial.  He was told that he pulled his knife and cut a Military Policeman in the stomach, but he had been drinking heavily and could not even remember the incident.  In conclusion, he stated that if he had not been reassigned to Korea, he would have retired from the service as a sergeant first class (SFC), E-7.

3.  The applicant provides a copy of Special Court-Martial Order Number 8, dated 18 May 1964; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); his DD Form 215 (Correction to DD Form 214); personal statements; and three letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 31 May 1970.  The application submitted in this case is dated 20 September 2006.

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 enlisted in the Regular Army on 26 February 1950.  He completed basic combat training and advanced individual training.  He was assigned to Korea on 17 July 1950.  He was captured and held as a POW from 13 March 1951 to 28 August 1953.  He departed Korea on 16 September 1953.
4.  The applicant was discharged from active duty on 26 October 1953 for immediate reenlistment.  He reenlisted on 27 October 1953 and continued to serve on active duty through a series of reenlistments.

5.  The applicant was promoted to specialist five, E-5 on 1 July 1955.

6.  The applicant was reassigned to Korea on 14 May 1963.

7.  On 7 April 1964, the applicant was convicted contrary to his plea by a special court-martial of committing an aggravated assault upon a specialist four, a military policeman, by cutting him on the abdomen with a dangerous weapon.  He was sentenced to a forfeiture of $50.00 pay per month for 6 months and a reduction to specialist four.

8.  The applicant departed Korea on 24 May 1964 and he was promoted back to specialist five on 11 March 1965.

9.  He served in Vietnam from 13 May 1965 to 12 May 1966.

10.  The applicant was promoted to staff sergeant, E-6 on 22 August 1966.

11.  The applicant’s AGPZ Form 977 (Data for Retired Pay), dated 31 March 1970, shows his retired grade and highest grade attained as staff sergeant.  

12.  The applicant was retired from active duty on 31 May 1970 and was placed on the retired list on 1 June 1970 in the rank and pay grade of staff sergeant, 
E-6.  

13.  Section 1552(f), Title 10, United States Code states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

14.  Title 10, U.S. Code, Section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction. 

15.  Title 10, U.S. Code, Section 3694 provides that retired warrant officers and enlisted Soldiers, when their active service plus service on the retired list total 30 years, are entitled to be advanced on the retired list to the highest grade in which they satisfactorily served on active duty.  When these Soldiers complete 30 years of service, their military personnel records are reviewed upon request to determine whether service in the higher grade was satisfactory.
16.  Title 10, U.S. Code, section 3961(b) states that, unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by section 3961a) (which discusses commissioned officers) who retires other than for physical disability retires in the Regular or Reserve grade that he holds on the date of his retirement.

17.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have the right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service record shows he was convicted by a special 
court-martial of committing an assault upon a specialist four, a military policeman, by cutting him on the abdomen with a dangerous weapon.  As a result of his court-martial, he was reduced from specialist five to specialist four.  He was later promoted back to specialist five.

2.  The applicant's request that his special court-martial be overturned was noted. However, by law, this Board cannot disturb the finality of a court-martial conviction.  

3.  The applicant was promoted to staff sergeant on 22 August 1966.  There is no evidence of record which indicates he was ever promoted to SFC, E-7.  It would be purely speculative to presume he would have been promoted to SFC absent the court-martial conviction.

4.  The applicant was retired on 31 May 1970 and placed on the retired list in the rank of staff sergeant, E-6.  By statute, an enlisted Soldier who retires for length of service retires in the grade that he holds on the date of his retirement.  The applicant held the rank and pay grade of staff sergeant, E-6 on the date of retirement.  Regrettably, since he never held the rank of SFC, E-7, he is not entitled to be advanced to SFC, E-7 on the retired list.  

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 May 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 May 1973.  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

x______  x_____ x_____  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.




x__________
          CHAIRPERSON




INDEX

CASE ID
AR20060014200
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070424
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
100.0000
2.

3.

4.

5.

6.