APPLICANT REQUESTS:  That his discharge be upgraded to an honorable discharge and that he be paid for the accrued leave he was never allowed to take.

APPLICANT STATES:  In effect, that he was found not guilty by a general   court-martial .  He hopes he is filing this application out correctly because this is the first time he has done things of this nature.  He never knew how to apply for his leave payment.

EVIDENCE OF RECORD:  The applicant’s military records show:

He was born on 6 February 1949.  He completed 14 years of formal education.  On 19 October 1970 he was drafted into the Army for 2 years.  He completed basic combat training but not advanced individual training.

On 13 April 1971, at Fort Ord, CA, the applicant was convicted by a special court-martial for being disrespectful to a superior commissioned officer and for disobeying a lawful order.  He was sentenced to confinement at hard labor for    4 months and to forfeit $75 pay for 6 months.

The applicant went absent without leave from 28 June - 10 July 1971.

On 30 August 1971, at Fort Sam Houston, TX, the applicant was convicted by a summary court-martial for unlawfully carrying a concealed weapon.  He was sentenced to confinement at hard labor for 30 days, to forfeit $50 pay for            1 month and to be reduced to pay grade E-1.

On 24 September 1971, the commander notified the applicant that he was being considered for separation under the provisions of Army Regulation 635-212 for unfitness.

On 21 October 1971, the applicant was evaluated by a psychiatrist and found to be able to distinguish right from wrong, to adhere to the right and to be mentally capable of understanding and participating in board proceedings.

In December 1971, the applicant was found not guilty in a general court-martial proceeding.

On 19 January 1972, the applicant completed a separation physical and was found qualified for separation. 

On 1 February 1972, the applicant acknowledged the separation action.  He stated he wanted his case to be considered by a board of officers, wanted to make a personal appearance before such a board, and wanted representation by counsel before such a board.  All these requests for his rights were later waived.  He did not submit any statements in his own behalf.

The appropriate authority approved the recommendation for separation and directed issuance of an Undesirable Discharge Certificate.  

On 19 April 1972, the applicant was discharged in the pay grade of E-1 under the provisions of AR 635-212 for unfitness.  He had completed 1 year, 1 month, and 15 days of creditable active service and had 136 days of lost time.

The Department of Defense Financial Management Regulation states a member who is separated with a discharge other than honorable forfeits payment for accrued leave.

On 27 March 1973, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

On 18 July 1977, the ADRB reviewed his case under the “DoD Discharge Review Program (Special)” (SDRP)  and found that his undesirable discharge should be upgraded to a general under honorable conditions discharge.  New separation documents were prepared and forwarded to him, along with a claim form for his use if he felt that the change of discharge would provide him entitlement to unpaid pay and allowances.  He was informed as to what documents to attach to the claim form and that all documents should be submitted to the Army Finance and Accounting Center, Indianapolis, IN.

On 31 August 1978, the ADRB reviewed his case once again when the applicant requested his now general discharge be upgraded to an honorable discharge.  The ADRB affirmed the findings of July 1977, which upgraded his discharge to general.

Title 31 U.S. Code, section 3702 establishes a 6-year statute of limitations on filing a claim for payment from the U.S. government.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations. 

3.  In July 1977, the ADRB found sufficiently mitigating circumstances to upgrade his discharge from an undesirable to a general discharge.  The Board found that his entire period of service was not sufficiently satisfactory so as to upgrade it to an honorable discharge.  In correspondence to the applicant notifying him of the upgrade, a claim form and sufficient information was supplied to him to enable him to apply for payment of his accrued leave at that time.

4.  Considering the applicant’s conviction by one special and one summary court-martial, the characterization of his discharge as general is appropriate.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION

						Loren G. Harrell
						Director