RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 September 2007
	DOCKET NUMBER:  AR20070003313 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A Wright

Analyst


The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Ms. LaVerne Berry

Member

Mr. Ronald Gant

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 rank of Private First Class (PFC/E-3) be reinstated and that all lost funds be returned to him.  

2.  The applicant states, in effect, that he was demoted from pay grade E-3 to   E-1 with loss of pay, $50.00 per month for 4 months.  His court-martial was expunged and all rights were restored; however, the funds were not returned to him nor restored.  He lost funds, pay grade, and time in service. 

3.  The applicant provides a copy of his DA Form 20 (Enlisted Qualification Record) and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he was inducted on 18 October 1965.  The applicant successfully completed basic combat training at Fort Benning, Georgia, and advanced individual training at Aberdeen Proving Ground, Maryland.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 63B, Wheel Vehicle Mechanic.  He was promoted to pay grade E-3 on 18 June 1966.

3.  On 10 December 1966, the applicant was convicted by a special court-martial of assault upon another Soldier by striking him in the face with a means likely to produce grievous bodily harm with his fists.  His sentence consisted of a forfeiture of $87.00 per month for 6 months, confinement at hard labor for 6 months, and a reduction to the pay grade of E-1.   


4.  There is no evidence, and the applicant provided none, to show that the forfeiture of pay that was imposed was collected from his pay.  The conviction adjudged by this court-martial was found to be defective and was set aside.  All rights, privileges, and property that he was deprived of was restored to him as shown below.

5.  Special Court-Martial Order 2, dated 3 January 1967, published by Eighth United States Army Support Command, states that the findings of guilty and the sentence in the special court-martial case of the applicant, adjudged on
10 December 1966, are set aside.  It appears from the record of trial that the members of the court-martial did not allow evidence as to good character and military proficiency to be submitted.  All rights, privileges, and property that the applicant was deprived of by virtue of the finding of guilty and the sentence so set aside were restored. 

6.  On 17 January 1967, the applicant was convicted by a special court-martial of assault upon another Soldier by striking him in the face with his fist.  His sentence consisted of a reduction to pay grade E-1 and a forfeiture of $50.00 per month for 4 months.  The sentence was approved on 6 February 1967 and was ordered duly executed.

7.  The applicant was advanced to pay grade E-2 on 7 June 1967.  

8.  The applicant served until he was released from active duty on 17 October 1967, in pay grade E-2.  He was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).  He was honorably discharged on 17 October 1971. 

9.  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 shows that the applicant was found guilty by his first special court-martial on 10 December 1966.  Consequently, he was not afforded due process and the sentence and finding of a forfeiture of $87.00 per month for 6 months, confinement at hard labor for 6 months, and a reduction to pay grade 
E-1, were set aside on 3 January 1967.  The court-martial order indicated that a rehearing could be ordered since the court-martial was not conducted in accordance with law and regulation and the applicant’s rights were not protected. 

2.  The applicant received a second court-martial which reduced him to pay grade E-1 with a forfeiture of $50.00 per month for 4 months.  

3.  He was honorably discharged in the pay grade of E-2.  There is no evidence to show that he was readvanced or reinstated to pay grade E-3 prior to his release from active duty.

4.  It is apparent that the applicant now wishes to be reinstated to the rank and pay grade of PFC/E-3 with all lost funds returned to him; however, it is noted that it has been over 40 years since he was court-martialed.  

5.  Title 31 U. S. Code, section 3702 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.  Therefore, he is not entitled to relief in this case.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___A____  ___LB___  ___RG__  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




_____James E. Anderholm_______
          CHAIRPERSON




INDEX

CASE ID
AR20070003313
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070918
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19671017
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
105
2.

3.

4.

5.

6.