MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 April 2000                   
	DOCKET NUMBER:   AR2000035322

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  That his lost time be deleted from his records.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That the Army failed to properly recalculate the applicant’s service time after the Army Discharge Review Board (ADRB) changed his dishonorable discharge to an honorable discharge.  The confinement involved was excessive in view of the nature and circumstances of the offense and all or a portion of the time lost should be waived.  The ADRB implicitly found that the court-martial sentence was inequitable and the lost time due to his confinement pursuant to the sentence should be restored.  The applicant has been denied non-service connected disability pension benefits as a result of this error.  Supporting evidence is as listed on Attachment A to the       DD Form 149.

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

He enlisted in the Regular Army on 29 June 1967.  

On 3 August 1967, the applicant underwent a psychiatric evaluation.  He was diagnosed with passive-aggressive reaction, chronic, severe, with a long history of character and behavior disorder.  He was found to be free from mental defect, able to distinguish right from wrong and to adhere to the right and that there were no mental or physical defects warranting disposition through medical channels.

After having previously accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, the applicant was convicted by a special    court-martial on 25 August 1967 for failing to obey a lawful order.  He was sentenced to confinement at hard labor for 2 months.  

While in confinement, the applicant was recommended for elimination under the provisions of Army Regulation 635-212 for misconduct – frequent incidents of a discreditable nature with civil or military authorities.  He was discharged, with a discharge under other than honorable conditions, on 11 October 1967.  He had completed 2 months and 1 day of creditable active service and had 43 days of lost time.

On 31 May 1981, the ADRB upgraded the applicant’s discharge to honorable.  The ADRB found that his discharge was proper but inequitable.  It noted the findings of the psychiatric evaluation and the ADRB believed that under current standards he would have received a trainee discharge under honorable conditions.

On 4 August 1998, the VA denied the applicant’s claim for non-service connected disability pension because disability pension is only payable when the veteran has served at least 90 days, part of which was during a wartime period; or was discharged for a disability incurred in or aggravated by service.

Title 10, U. S. code, section 1553, authorizes the ADRB to review the discharge of any former member.  With respect to a discharge adjudged by a court-martial, action may extend only to a change in the discharge or issuance of a new discharge for purposes of clemency.

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.

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 or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The ADRB’s action was not related to the applicant’s court-martial; it concerned his subsequent administrative separation for misconduct.  The ADRB may only review and act upon a discharge action.  Since the applicant’s sentence by court-martial did not include a discharge, the ADRB could not consider any action taken by that court-martial.

3.  This Board also does not have the authority to disturb the finality of a      court-martial conviction.  The applicant was sentenced to confinement and served a portion of that confinement.  That is a fact that cannot be changed by this Board.  The applicant’s recourse is to file an appeal to a Federal Court of competent jurisdiction or to request an exception to policy from the VA.

4.  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

__eb____  __tap___  __klw___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035322	
SUFFIX		
RECON		
DATE BOARDED	20000427	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	123.06	
2.		
3.		
4.		
5.		
6.