RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 August 2005 DOCKET NUMBER: AR20050001379 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. James Vick Chairperson Mr. Ronald Weaver Member Mr. Robert Rogers 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 that his undesirable discharge be upgraded. 2. The applicant states he committed no offense to the Armed Services and that he served over ten years and received three honorable discharges. 3. The applicant provides no evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 14 August 1973. The application submitted in this case is dated 19 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 was inducted on 13 March 1962 and honorably discharged on 17 May 1962 for immediate enlistment in the Regular Army. He enlisted on 18 May 1962 for a period of 3 years. He was honorably discharged on 13 March 1964 for immediate reenlistment. He reenlisted on 14 March 1964 for a period of 6 years. He was honorably discharged on 18 January 1970 for immediate reenlistment. He reenlisted on 19 January 1970 for a period of 6 years. 4. On 7 July 1971, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of a forfeiture of pay (suspended). 5. On 15 December 1971, nonjudicial punishment was imposed against the applicant for failure to repair and disobeying a lawful order. His punishment consisted of a forfeiture of pay, reduction to E-5 (suspended), and restriction. 6. The applicant went absent without leave (AWOL) on 3 July 1972. On 17 August 1972, the applicant was arrested by civil authorities for burglary. He returned to military control on 13 September 1972. 7. On 3 October 1972, the applicant was convicted by civil authorities for burglary. The judge ordered a pre-sentence investigation. 8. The applicant went AWOL on 3 October 1972 and was apprehended by civil authorities on 10 October 1972. He went AWOL again on 11 October 1972 and was apprehended by civil authorities on 4 March 1973. 9. On 28 June 1973, the applicant was sentenced to 18 months confinement for his civil offense (burglary). 10. On 24 July 1973, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 for conviction by civil court. 11. On 27 July 1973, the applicant waived consideration of his case by a board of officers, he waived representation by counsel, and he elected not to submit a statement on his own behalf. He also indicated that he did not wish to appeal his civil conviction. He also acknowledged that he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable were issued and he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life. 12. On 31 July 1973, the applicant’s unit commander initiated action to separate him from the service under the provisions of Army Regulation 635-206 for conviction by civil court. He based his recommendation for separation on the applicant’s civil conviction and recommended that the applicant be issued an undesirable discharge. 13. On 6 August 1973, the separation authority approved the recommendation for discharge and directed the issuance of an undesirable discharge. 14. Accordingly, the applicant was discharged on 14 August 1973 with an undesirable discharge under the provisions of Army Regulation 635-206 for conviction by civil court. He had served 10 years, 5 months and 9 days of creditable active service with 388 days of lost time due to AWOL and confinement. 15. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 16. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct. The regulation provided, in pertinent part, for the separation of personnel for conviction by civil court. An undesirable discharge was normally considered appropriate. 17. Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. 18. 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. The applicant’s record of service during his last enlistment included two nonjudicial punishments and 388 days of lost time. It appears he also committed a serious civil offense while in the Army. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge. 2. 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. 3. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 4. Records show the applicant should have discovered the alleged injustice now under consideration on 14 August 1973; therefore, the time for the applicant to file a request for correction of any injustice expired on 13 August 1976. 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 JV_____ RW_____ RR______ 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. ___James Vick_________ CHAIRPERSON INDEX CASE ID AR20050001379 SUFFIX RECON DATE BOARDED 20050818 TYPE OF DISCHARGE UD DATE OF DISCHARGE 19730814 DISCHARGE AUTHORITY AR 635-206 DISCHARGE REASON Conviction by civil court BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 144.0000 2. 3. 4. 5. 6.