RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 December 2005 DOCKET NUMBER: AR20050001380 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 Mr. Edmund P. Mercanti Analyst The following members, a quorum, were present: Mr. Richard T. Dunbar Chairperson Mr. James B. Gunlicks Member Mr. Scott W. Faught Member 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 reinstatement of his commission. 2. The applicant states that because of a wrongful conviction, he was boarded out of the Army which resulted in the loss of all of his veterans benefits and his standing as a Soldier of many years service. After serving 19 months in prison, his conviction was reversed upon appeal. He was then acquitted of the charges at a new trial. 3. The applicant provides Orders 103-050 dated 30 October 1985 which show that the applicant, an Army Reserve captain assigned to a troop program unit, was dropped from the rolls of the Army effective 15 August 1985 under the provisions of Army Regulation 135-175, paragraph 3-5; a letter from the Clerk of the Court, The Court of Appeals of the State of Washington, dated 26 January 1987, which stated that the court had ruled that the applicant’s conviction was “Reversed and [his case was] remanded for a new trial”; and two documents from the Superior Court of the State of Washington dated 2 November 1987 which show that a jury found the applicant not guilty of assault in the first degree. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of alleged error which occurred on 15 August 1985. The application submitted in this case was received by the Board’s staff on 28 January 2005. 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. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant’s military records were not provided to the Board and are presumed to be lost. 4. Army Regulation 135-178, Chapter 3, in effect at the time, stated that an officer may be dropped from the rolls of the Army when the officer is sentenced to confinement in a Federal or State penitentiary or correctional institution after having been found guilty of an offense by a civil court, provided the sentence had become final, whether or not the officer was actually confined. 5. In the processing of this case, on 27 October 2005 the Board’s staff contacted the applicant and requested that he provide documents to show exactly what he was initially convicted of. The applicant stated that he would contact the court to obtain his original conviction documents and would send them as soon as he received them. As of this date no additional documents have been received by the Board’s staff. DISCUSSION AND CONCLUSIONS: 1. The applicant has submitted documents which show that he was dropped from the rolls of the Army due to civil conviction. The applicant has also submitted documents to show that a civil conviction was reversed and remanded to a new trial, and the new trial found the applicant not guilty. 2. However, the applicant did not submit court documents which would show what he was initially convicted of. If the applicant was convicted of more than one offense, the reversal of a conviction and subsequent acquittal of the charges which led to that conviction may not negate the validity of the applicant’s separation. The other remaining convictions may have satisfied the requirements of Army Regulation 135-175 to drop the applicant from the rolls of the Army. 3. Without documentation to clearly show what the applicant was convicted of there is insufficient basis in which to grant his request. 4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 August 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 August 1988. 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___jbg___ ____rtd__ ___swf__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. As a result, the Board further determined that there is no evidence provided which shows that it would 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. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. _________Richard T. Dunbar________ CHAIRPERSON INDEX CASE ID AR20050001380 SUFFIX RECON 20051208 DATE BOARDED YYYYMMDD TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.