MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 January 2000                   
	DOCKET NUMBER:   AR1999032664

	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:

	Mr. Edward Williamson		Chairperson	
	Mr. John Saputo		Member	
	Mr. Allen L. Raub		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 he be given the monetary benefits due him as a result of the upgrade in his discharge.

APPLICANT STATES:  That he did not receive his final paycheck because of his discharge under other than honorable conditions, which has since been upgraded.  He did not discover the error until he received his VA records in November 1998 and read the 1 October 1979 letter he provides as supporting evidence.

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

On 5 April 1974, he was discharged for misconduct with a discharge under other than honorable conditions.

On 29 November 1976, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

On 20 August 1979, the applicant and his counsel, Mr. R____ D____ of Berkeley, CA appeared before an ADRB travel panel in San Francisco, CA.  The applicant’s address for this hearing was given as care of Mr. R____ D____, Berkeley, CA.  The majority of the board voted to grant partial relief based upon equity and changed his discharge to a general discharge under honorable conditions.  The ADRB’s decision letter was dated 1 October 1979 and was mailed to the applicant care of his counsel, Mr. R______ D_____.  His new separation documents were enclosed with the letter.  The letter also advised the applicant to apply to the U. S. Army Finance and Accounting Center for any monetary benefits to which he may have been entitled by virtue of the change in his discharge.

The applicant apparently did receive his separation documents because in 1981 he applied to the ADRB for a further upgrade.

Title 31 U.S. Code, section 3702 establishes a 6-year statute of limitations on filing a claim for payment from the U.S. government.

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.  When the ADRB upgraded the applicant’s discharge to a general discharge under honorable conditions in 1979, it properly provided a letter to him, care of his counsel, notifying him of the upgrade, providing him his new separation documents, and informing him to apply to the U. S. Army Finance and Accounting Center for any monetary benefits to which the change in his discharge may have entitled him.  It was his counsel’s responsibility to provide him with all documents and information provided with this letter.

3.  Unfortunately, the 6-year statute of limitations on filing a claim for payment from the U.S. government expired in 1985.

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

__EW____  __JS____  __ALR___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999032664	
SUFFIX		
RECON		
DATE BOARDED	20000106	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.