MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            17 May 2000                  
	DOCKET NUMBER:   AR1999026738

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl S. W. Chun .		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Carl M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Upgrade of his discharge to honorable based on the convenience of the government, with the appropriate changes of his reentry and separation designator codes.  He states he was a conscientious objector, and that the trial counsel’s improper arguments substantially prejudiced him regarding his sentence, and infringed upon his constitutional rights.  In support of his request he submits a copy of the record of trial in his general court-martial case.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.

On 3 April 1957 the applicant was inducted into the Army of the United States for a period of 2 years.  He was absent without leave from 13 May 1957 until apprehended by the FBI on 24 January 1958.  On 12 February 1958, his commander preferred court-martial charges against him for desertion and recommended a general court-martial.  

On 7 March 1958, he was tried by a general court-marital and pled guilty to the charge of desertion.  His sentence included a dishonorable discharge, total forfeitures, and confinement at hard labor.

On 16 April 1958, the U.S. Court of Military Review affirmed the findings and sentence. On 4 June 1958, the applicant with military counsel, petitioned the U.S. Army Court of Military Appeals for a grant of review of the findings and sentence of his case.  On
21 July 1958, the U.S. Court of Military Appeals denied the applicant’s petition for a grant of review and on 7 August 1958 his sentence was ordered to be executed, except for the dishonorable discharge, which was suspended until his release from confinement. 

On 17 September 1958, the applicant’s request for clemency and parole was disapproved and he was dishonorably discharged on 9 December 1958.  

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.  The Board can only review the sentence for clemency.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 9 December 1958, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 9 December 1961.

The application is dated 27 April 1999 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__cmf___  ___fe___  ___rjw___  CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
of Military Records

INDEX

CASE ID	AR1999026738	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000517	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 142.0		
2.		
3.		
4.		
5.		
6.