RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           25 November 2003   
	DOCKET NUMBER:   AR2003088346

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

	Mr. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Yolanda Maldonado		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he has an honorable discharge for the period 
29 March 1972 to 23 January 1974.  He contends that after the accidental shooting of his best friend his attitude and outlook changed.  He also contends that his youth and the shooting accident impacted his behavior.      

3.  The applicant provides four letters of support.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

The American Legion was notified of the applicant's pending review on 
16 October 2003; however, no brief was submitted.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
3 November 1977.  The application submitted in this case is dated 20 January 2003. 

2.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.   

3.  At age 17, with parental consent, the applicant enlisted on 29 March 1972 for a period of 3 years.  He served as an infantry direct fire crewman in Korea from 
11 September 1972 through 19 October 1973 and was honorably discharged on 
23 January 1974 for immediate reenlistment.  He reenlisted on 24 January 1974 for a period of 5 years.   

4.  On 3 September 1974, contrary to his pleas, the applicant was convicted by a special court-martial of aggravated assault upon a soldier by shooting him in the back with a pistol.  He was sentenced to be discharged from the service with a bad conduct discharge, to be reduced to the grade of Private/E-1, to forfeit $100 pay per month for 6 months, and to be confined at hard labor for 60 days.  On 
8 October 1974, the convening authority approved the sentence but suspended the execution of the bad conduct discharge until 15 March 1975.  It appears the sentence to a bad conduct discharge was remitted.  The Record of Trial was not available.

5.  On 30 May 1975, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a forfeiture of pay (suspended for 60 days), restriction, and extra duty.

6.  On 9 September 1976, contrary to his pleas, the applicant was convicted by a special court-martial of three specifications of being absent without leave (AWOL) (28 March 1976 to 17 May 1976; 18 May 1976 to 17 June 1976; and 
7 July 1976 to 19 July 1976).  He was sentenced to be reduced to the grade of Private/E-1, to forfeit $100 pay per month for 4 months and to be confined at hard labor for 130 days.  On 1 October 1976, the convening authority approved the sentence.  On 17 November 1976, the unexecuted portion of the approved sentence to confinement at hard labor for 130 days and forfeiture of $100 pay per month for 4 months was suspended until 31 January 1977.  

7.  On 21 January 1977, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation (not registering his weapon) and for discharging a privately owned pistol in the barracks.  His punishment consisted of correctional custody for 30 days (suspended until 21 March 1977).

8.  On 3 June 1977, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a reduction to Private/E-1, a forfeiture of pay, and restriction.

9.  On 5 July 1977, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  

10.  The applicant’s unit commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for misconduct.  He cited that the applicant received an Article 15 for possession of an unregistered firearm after the commanding officer found a fire in the applicant's bed which caused several bullets to discharge.  In addition, he cited that the applicant had been charged with reckless driving in April 1977 and charged with driving without a license in his possession in May 1977.  He also stated that the applicant's performance was unsatisfactory and that he did not have the potential to remain in the Army.

11.  After consulting with counsel, the applicant requested consideration of his case before a board of officers.

12.  On 19 September 1977, the applicant appeared before a board of officers.  The applicant testified, in pertinent part, that "It was accidental when I shot the man in the back;" "When I shot a man in the back in 74, it happened in the barracks.  It was another case where I had a pistol in the barracks;" and "When I shot the man in the back, we were together and it was another guy's pistol.  We were going along and I told him I wondered if anything was in this, I didn't even know.  I didn't know how to break it down, I was trying to open it and it went off.  The first thing you do when you pick up a weapon is to clear it.  It's hard to get an accidental discharge with any weapon if you don't press the trigger.  I was convicted for shooting the man."  The board recommended that the applicant be discharged from the service because of misconduct with the issuance of a discharge under other than honorable conditions.

13.  On 27 October 1977, the separation authority approved the recommendation by the board and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, for misconduct.  He directed that the applicant be furnished a discharge under other than honorable conditions.    

14.  Accordingly, the applicant was discharged on 3 November 1977 with a discharge under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for misconduct.  He had served 4 years, 11 months and 8 days of total active service with 240 days of lost time.

15.  On 26 January 1983, the ADRB denied the applicant's request for a discharge upgrade to honorable or general.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Chapter 13, paragraph 13-5a(1), provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

17.  Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record, and the applicant has provided no evidence, which shows the shooting was accidental.  His special court-martial conviction was for aggravated assault.

2.  The applicant was 20 years old at the time he shot another soldier in the back with a pistol and he had completed almost 2 and 1/2 years of service.  Age alone is not a sufficiently mitigating factor.   

3.  The letters of support submitted by the applicant attest to his current medical problems and good post service conduct.  However, these matters are not a basis for upgrading his discharge. 

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  The applicant's record of service included three nonjudicial punishments, two special court-martial convictions, and 240 days of lost time.  He provided no evidence to show that his misconduct was the result of the "accidental shooting of his best friend."  As a result, his record of service was not satisfactory.  Therefore, the applicant is not entitled to a general discharge.

7.  Records show the applicant should have discovered the error or injustice now under consideration on 26 January 1983 (the date of the ADRB action); therefore, the time for the applicant to file a request for correction of any error or injustice expired on 26 January 1986.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

RVO___  LEM_____  YM______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		_Raymond V. O'Connor__
		        CHAIRPERSON

INDEX

CASE ID	AR2003088346	
SUFFIX		
RECON		
DATE BOARDED	20031125	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19771103	
DISCHARGE AUTHORITY	AR 635-200 Chapter 13 Para 13-5a(1)	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.