MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:                 

	BOARD DATE:                     5 November 2002    
	DOCKET NUMBER:            AR2002071194

	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	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. John T. Meixell		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:  In effect, that his bad conduct discharge (BCD) be upgraded to honorable.  The applicant dates the discovery of the alleged error or injustice as July 1978.  He states that the alleged error or injustices happened during the time of his appeal.  He points out that he never had a chance to be heard and for justice to be served.  The applicant contends it was a fellow soldier who stole money from another soldier.  He states, that he did accept money from the fellow soldier, but did not know it was stolen at the time and was held responsible for stealing it.  He adds that his appeal process was taking a long time and he decided to contact The Judge Advocate General’s Office (JAG).  In doing so, he was informed by JAG personnel that he had been separated with a Bad Conduct Discharge.  “My question to JAG was how could this be so and I’m here in the Army being paid and during (sic) my duties.”  He contends he was told by JAG personnel “we have got to get you out of here now,” which they did.  He adds that he received a second BCD, one year and seven months later.  He now states that after twenty years, the appeal process and discharge still bother him.  Therefore, he is asking for restitution, an upgrade and his rights and benefits restored to him.

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 a period of 4 years on 11 October 1972 and completed his military training.  He was awarded military occupational specialty (MOS) 11B10, (Infantryman).  He was subsequently assigned to Fort Campbell, Kentucky, in his MOS.  

On 13 December 1972, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for assault upon another soldier, by striking him on the head with a dangerous weapon likely to produce grievous bodily harm, to wit: a steel rod from a wall locker.  His punishment included forfeiture of $130.00 pay per month for two months, one month which was suspended. 

The applicant then received five additional NJPs as follows: on 2 March 1973, for violation of a lawful regulation (Crime Prevention), his punishment included forfeiture of $25.00 pay; on 5 March 1973, failure to go to his appointed place of duty, his punishment included forfeiture of $50.00 pay, suspended (vacated on 29 March 1973) and seven days of extra duty; on 28 March 1973, for being 

absent without leave (AWOL), his punishment included reduction in grade to 
E-1 and 7 days extra duty; on 26 April 1973, for being AWOL, his punishment included forfeiture of $70.00 pay and 14 days extra duty.

On 21 August 1974, the applicant was convicted by a general court-martial (GCM) in conjunction with another U.S. Army soldier, of stealing $50.00 in U.S. currency, a $200.00 personal money order, a shirt valued at $7.00, and a watch valued at $225.00, the property of a fellow soldier.  His sentence included confinement at hard labor for sixty days and a BCD.  The BCD was deferred pending appellate review.  

During the pending appellate review, the applicant received three more NJPs.  On 18 November 1975, for using disrespectful language towards a superior non-commissioned officer, his punishment included forfeiture of $75.00 pay and 14 days of extra duty; on 15 December 1975, for breaking restriction, his punishment included forfeiture of $75.00 pay and 14 days extra duty and on 11 March 1976, for twice failing to go to his appointed place of duty, his punishment included forfeiture of $180.00 pay per month for two months and extra duty for thirty days.

General Court-martial (GCM) Order Number 16, dated 14 June 1976, issued by the Department of the Army, Headquarters 5th Infantry Division (Mechanized) and Fort Polk, Louisiana, which announced that the applicant’s court-martial had been affirmed and that the provisions of Article 71C had been complied with.  It also ordered the sentence executed.  Apparently, it was later discovered that GCM Order Number 16 had been issued prior to final action on applicant’s appeal.  Thus, on 14 December 1976, GCM Order Number 28, same headquarters, rescinded GCM Order Number 16.

On 24 June 1976, ten days after GCM Order Number 16 was issued and almost six months before it was rescinded, Department of The Army, Headquarters, 5th Infantry Division (Mechanized) and Fort Polk, Louisiana, issued Special Orders Number 127, likely in reliance on GCM Order Number 16’s representation that applicant’s case was final.  Special Order Number 127 ordered applicant’s discharge, effective the following day, citing the authority of GCM Order Number 68, which was the 11 November 1974 order issued by Fort Campbell, Kentucky promulgating the results of applicant’s general court-martial.  Special Orders Number 127 characterized applicant’s discharge as a bad conduct discharge.

At the time of his 25 June 1976 discharge, applicant had completed 3 years,
6 months and 19 days of active military service.  He was discharged with a pay grade of E-1.  He had 57 days lost time due of AWOL and confinement.  

Although it appears that applicant’s discharge was premature because 
the appellate process had not yet been completed in his case, there is 
no evidence applicant suffered any harm due to this administrative error.  

His 25 June 1976 discharge correctly characterized his service.  On 
14 September 1977, Headquarters, Department of the Army, issued GCM Order Number 29 finally affirming, without changing the results of his court-martial. 

On 15 January 1978, Headquarters, 5th Infantry Division (Mechanized) and Fort Polk issued Orders 21-145.  Orders 21-145 discharged the applicant, under other than honorable conditions with a bad conduct discharge by reason of a general court-martial, effective 2 February 1978.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary process.  In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, nor is it empowered to change findings of guilt.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  

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 27 February 1978, the date he was discharged from active duty.  The time for the applicant to file a request for correction of any error or injustice expired 27 February 1981.

The application is dated 4 March 2002 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 recommended 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 three-year time limit.

BOARD VOTE:

___MHM    __ENA__  ___JTM _  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002071194	
SUFFIX		
RECON		
DATE BOARDED	2002.11.05	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1976-06-25	
DISCHARGE AUTHORITY	AR 635-200 GCM/BCD	
DISCHARGE REASON	A144.61	
BOARD DECISION	DENY	
REVIEW AUTHORITY	A110.02	
ISSUES         1.	A123.01	
2.	A60.00	
P3.		
4.		
5.		
6.