MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 September 2002
	DOCKET NUMBER:   AR2002067372

	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 W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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:  That his undesirable discharge (UD) be upgraded to an honorable discharge (HD); and that he be paid back pay and allowances, with interest to 2001, from June 1969 to July 1972.

APPLICANT STATES:  In effect, that he was stationed at Fort Benning, Georgia, in June 1969; that after "arranging for a 3-day leave," he departed Fort Benning on 6 June 1969 and arrived in Chicago, Illinois, on the same date; that he was robbed and severely beaten by "several Black Chicago gang bangers" and awoke in a "military building on Clark Street" where he received medical treatment; that the unknown military doctor or male nurse who treated his physical injuries did not refer him for a "psychological examination;" that he was released while suffering from amnesia and wandered the streets of Chicago as a homeless person; that he was arrested several times by the Chicago Police Department and should have been returned to military control, but the military failed to place a detainer against him and he was repeatedly released until he was "convicted and sentenced for criminal crimes."

In support of his application, the applicant submits a "Brief of Arguments Supporting Application for Correction of Military Records;" a "Verification of Certification" signed by the applicant; an affidavit sworn on 3 August 2000; a 27 July 2000 letter from an attorney to the applicant; a copy of his DD Form 214, Report of Transfer or Discharge; a copy of the applicant's sentence imposed by the Cook County (Illinois) Circuit Court; a copy of the cover page of a 14 August 2001 "Petition for Relief of Judgment" purportedly filed by the applicant before the Circuit Court of Cook County; a copy of a certificate of completion of the "Skill Development for Successful Living" course; a copy of a certificate of participation dated 30 April 2001; a copy of a 24 May 2001 letter to the applicant from the National Personnel Records Center; a copy of Item 38 (Record of Assignments) of a DA Form 20, Enlisted Qualification Record.

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 show:

He enlisted in the Regular Army for 3 years on 16 October 1967.  Following basic combat training (BCT) and advanced individual training (AIT) at Fort Leonard Wood, Missouri, he was awarded military occupational specialty (MOS) 51B, Carpenter.

The applicant's first duty assignment was in Korea from 18 March 1968 through 11 April 1969 where he served in the 37th Engineer Detachment.  Upon returning to the United States, he was assigned to Company B, 43rd Engineer Battalion, Fort Benning, reporting there on or about 4 June 1969.

The applicant accepted several nonjudicial punishments (NJP) under Article 15, Uniform Code of Military Justice, during his period of service.  While still in training at Fort Leonard Wood, he was absent without leave (AWOL) from 29 January through 5 February 1968.  His punishment consisted of forfeiture of $21.00 pay per month for 1 month and 14 days' restriction.  While stationed in Korea, he accepted NJP on 12 December 1968 for violating a lawful general regulation (missing bed check) and failing to go to his place of duty.  His punishment consisted of forfeiture of $25.00 pay per month for 1 month, 14 days extra duty, and 14 days' restriction.  On 1 February 1969, he was punished for failing to go to his place of duty by being reduced from E-4 to E-3.  Finally, he accepted NJP on 7 February 1969 for failing to go to his place of duty.  As punishment, he forfeited $15.00 pay per month for 1 month, extra duty for 7 days, and restriction for 14 days.

On 6 June 1969, just 2 days after reporting for duty at Fort Benning, the applicant went AWOL.  He was reported AWOL by his unit and a letter was sent to his mother advising her of the situation and asking her to tell the applicant to return to military control.  On 8 July 1969, he was dropped from his unit's rolls as a deserter and, on 18 July 1969, DD Form 553, Absentee Wanted by the Armed Forces, was filed by the US Army Deserter Information Point (USADIP), Fort Benjamin Harrison, Indiana, with the Chicago Police Department, Cook County Sheriff's Office, and the Federal Bureau of Investigation (FBI) among other organizations.

The record is silent concerning the applicant's whereabouts until 26 August 1971 when civil authorities notified the Army that the applicant was in custody as of 25 March 1971 on a charge of murder.  On 15 November 1971, the applicant was convicted along with his brother and another individual for murdering a man on 21 March 1971.  He was sentenced to not less than 100 years or more than 150 years in prison.

An FBI report of criminal activity by the applicant shows the following:  while he was in the Chicago area on leave enroute from Korea to Fort Benning, he was arrested for attempted robbery on 23 April 1969; he was arrested for resisting arrest in Chicago on 27 October 1969; he was arrested in Chicago for aggravated assault on 27 November 1969 and on 23 December 1969; and he was arrested in Chicago for murder on 25 March 1971.

On 24 April 1972, the applicant was notified that the Army was initiating action to separate him under the provisions of Army Regulation 635-206 for his civil court conviction.  The applicant acknowledged notification, waived his rights, and stated that he would not appeal his conviction.  On 7 July 1972, the approving authority approved the applicant's separation with a UD.

The applicant was separated with a UD on 19 July 1972.  He had 1 year, 8 months, and 5 days of creditable active Federal service and 1,125 days of lost time due to AWOL and civil confinement.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Section III of the regulation provided, in pertinent part, that members convicted by a civil court were subject to separation. An undesirable discharge was normally considered appropriate.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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:  

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 this requirement.

2.  The applicant was a substandard soldier prone to deeds of misconduct for which he frequently received NJP.  He left Korea on/about 11 April 1969 on leave enroute to his new assignment at Fort Benning.  When he reported to his unit at Fort Benning on 4 June 1969, he promptly went AWOL on 6 June 1969.  The Board does not accept the applicant's contention that he was given a 3-day leave after coming off a lengthy permanent-change-of-station leave.

3.  The Board does not accept the applicant's contention that he was robbed and severely beaten in Chicago on 6 June 1969 or that he was treated by an unknown Army doctor who, after treating his physical injuries, failed to refer him 

for psychological evaluation, instead releasing him to wander the streets as a victim of amnesia.  There is no proof of this in the record, nor has the applicant provided any proof with his application.

4.  Following his departure, the applicant's unit immediately placed him in an AWOL status and sent a letter to his mother informing her of the applicant's status and requesting her help in returning him to military control.  After 30 days of AWOL, the unit appropriately reclassified the applicant as a deserter and dropped him from the unit's rolls.  The unit also notified the USADIP and pertinent civilian and military law enforcement agencies were alerted.

5.  It is unknown why the Chicago Police Department did not alert earlier to the fact that the applicant was wanted by the Army as a deserter.

6.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

7.  Soldiers who are in an AWOL or deserter status are not entitled to pay and allowances.  The applicant was not entitled to pay and allowances from the start date of his AWOL (6 June 1969) through his separation on 19 July 1972.  

8.  The alleged error or injustice was, or with reasonable diligence should have been discovered on 19 July 1972, the date of the applicant's separation.  The time for the applicant to file a request for correction of any error or injustice expired on 19 July 1975.  The application is dated 14 August 2001 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.

Prior to reaching this determination, the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed, it would have recommended relief in spite of the applicant's failure to submit his application within the 3-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__fne___  __bje___  __wdb___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002067372	
SUFFIX		
RECON		
DATE BOARDED	20020910	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720719	
DISCHARGE AUTHORITY	AR 635-206  	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.	128.0000	
3.		
4.		
5.		
6.