MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            4 May 2000                  
	DOCKET NUMBER:   AR1000033700

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful 		Chairperson	
	Mr. James P. Stueve		Member	
	Ms. Carol Jo Suiter		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:  Reconsideration of his previous application to correct his records by upgrading his discharge to honorable.

APPLICANT STATES:  In effect, that elimination action was neither arbitrary nor capricious.  The discharge should be upgraded because his third special court-martial conviction was overturned on appeal, but that the Fort Riley Correctional Training Facility (CTF) sent him to an elimination Board anyway so the Army would not have to perform corrective surgery on his eye.  He states he was discharged from Fort Riley at gunpoint.  His chain of command were prejudiced against him because of his race.

He contends that the original application was timely because he couldn’t get the documents from the Army until 1995 which makes that the date of discovery.

He complains that he is in ill health due to a stroke and a heart attack, but the VA will not provide treatment because of his discharge.  He submits copies of service and civilian medical records and VA documents to substantiate his case  

He contends that the Army Discharge Review Board (ADRB) agreed to upgrade his discharge.

He submits copies of service record documents including the DA General Order that set aside his final court-martial conviction and the record of his elimination Board.
  
NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to 
reflect the Board's original consideration of his case on 21 December 1994 (COPY ATTACHED).

The DA order setting aside the third court-martial is new evidence that requires Board consideration.

The contentions and evidence relating to his health problems and the VA’s denial of treatment are accepted as an implied argument that these post-service considerations, considered separately or in conjunction with other factors warrant the requested relief.

DA Special Court Martial Order 95, dated 13 July 1970 set aside the applicant’s third court-martial conviction and restored all right, property and privileges.

At his 22 April 1970 elimination board the applicant’s chain of command testified that he was a chronic liar.   They did not believe that he was sincere in asking to be restored to duty, that he had appeared before the board of officers in simply hopes of getting a general discharge.  They also did not believe that he would succeed if he were restored to duty.

The applicant testified in his own behalf.  His counsel asked him “Did you lie in the past.”  The applicant responded, “Yes, I lied some because I was eligible for a U.D. and I didn’t want anyone to look in my 201.  I was put in D.S. because of my attitude.  I didn’t curse CPT Mc____ or anything.  CPT B____ visited me in D.S. and harassed me by telling me what might happen to me”

He also testified that he had twice received nonjudicial punishment under Article 15, UCMJ.

In his closing argument the applicant’s counsel stated in part “I think he want’s to go back to duty.  We have presented the evidence fairly.  We are not trying to say he deserves a general discharge.  He does not want one.  He wants to return to duty.  Give him another chance.”  

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.  No specific number of offenses or convictions were required before an individual could be processed for elimination for unfitness.  Although the applicant’s third special court-martial conviction was set-aside after the discharge that does not demonstrate an injustice in the discharge.  The applicant was referred to elimination because of his attitude.  While the exhibition of a bad attitude might be understandable in an individual who feels unjustly convicted, it is not acceptable in an individual who claims to desire restoration to duty.  

2.  The elimination action was neither arbitrary nor capricious.  Even if the third special court-martial conviction had been set aside before the elimination recommendation occurred the applicant would still have been subject to 

elimination with a record that included two special court martial convictions and two NJPs.  Clearly, if he had exhibited the same lying behavior and bad attitude the same result would have occurred, especially in light of the fact that the applicant’s service record is otherwise devoid of distinguishing virtue or accomplishment.  The undesirable discharge was and is appropriate. 

3. There is no available evidence to show that the ADRB agreed to upgrade the applicant’s discharge.  There is no available evidence to show that racial prejudice was a factor in the applicant’s discharge.  

4.  The applicant’s medical problems are noted but entitlement to VA benefits is not normally a basis for a favorable recommendation by the Board.  Additionally, the applicant’s post service situation is not so exceptional as to demonstrate that the requested relief is warranted.  

5.   Prior to reaching a determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at an entire file.  The Board considers the statute of limitations only after all other aspects had been considered and it had been concluded that there is basis to recommend a correction of the records.  When the Board determines that an error or injustice exists, it routinely recommends relief in spite of a failure to submit the application within the 3-year time limit.  Although the decisional document does not state that the Board considered the merits of the case, the display of the pertinent details of the applicant’s service record, the circumstances of the discharge and the regulation governing the discharge tends to show that it did.  The Board does not deny applications simply because they were not submitted within 3 yeas.  Furthermore, arguments about failure to timely file are moot, because this review of the entire case is a consideration of the merits.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  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

__LLS __  ___JPS__  ___CJS _  DENY APPLICATION

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

INDEX

CASE ID	AR1999033700	
SUFFIX		
RECON		
DATE BOARDED	20000504 	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19700518	
DISCHARGE AUTHORITY	AR 635-212    	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A92.21	
2.	A93.15	
3.	A94.01	
4.		
5.		
6.