RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 February 2005
      DOCKET NUMBER:  AR20040000690


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. William D. Powers             |     |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 under other than honorable conditions
discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that his creditable active duty
service should be taken in consideration for a discharge upgrade.  The
applicant contends that his effective date on his DD Form 214 (Report of
Separation from Active Duty) is incorrect and that it exceeds his three-
year enlistment.  He further contends that his pay grade on his DD Form 214
should be corrected to show PV2 instead of PV1.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 August 1977.  The application submitted in this case is
dated 24 April 2004.

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 enlisted in the Regular Army on 16 August 1973 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 05C (Radio Operator).

4.  The applicant's Army Discharge Review Board (ADRB) case shows that, on
  23 January 1974, he accepted nonjudicial punishment (NJP) under Article
15, Uniform Code of Military Justice (UCMJ) for unspecified misconduct.

5.  A DA Form 3836 (Notice of Return of United States Member from
Unauthorized Absence), dated 9 May 1977, shows that on 18 October 1974 the
applicant was apprehended by the El Paso, Texas Sheriff's Office for the
charge of murder.  On 23 March 1975, he was extradited to civil authorities
in Chicago, Illinois for trial.

6.  Records show that on 7 April 1977 the applicant was convicted of
voluntary manslaughter.
7.  The applicant's service personnel records do not contain the facts and
circumstances surrounding his separation process.  However, his OSA Form
172 (Discharge Review) shows that on 10 April 1977 he was advised by his
commander of the commander's intent to discharge him for conviction by
civil court and was informed of his rights under the provisions section IV
of Army Regulation 635-206.

8.  The OSA Form 172 further shows that on 21 April 1977 the applicant
waived his rights and indicated he did not intend to appeal his civil
conviction and did not submit a statement.  On 27 April 1977, he was
sentenced to four to twelve years confinement.

9.  On 26 May 1977, the applicant's unit commander recommended that he
discharged for civil conviction.  On 10 June 1977, the appropriate
authority approved the discharge for conviction by civil court.  He
directed that the applicant be issued an under other than honorable
conditions discharge and be reduced to the lowest enlisted grade.

10.  The applicant's DD Form 214 shows that he was discharged on 15 August
1977 under the provisions of section IV of Army Regulation 635-206 for
conviction by civil court.  He served 1 year, 1 month, and 20 days of
creditable active service and had 1041 days of lost time due to civil
confinement.  Item 6b (Pay Grade) shows the entry "E-1."  Item 7 (Date of
Rank) shows the entry "770610."  Item 9d (Effective Date) shows the entry
"770815."

11.  On 12 May 1982, the ADRB considered the applicant’s request to change
the characterization of his discharge.  The ADRB unanimously determined
that the characterization of his discharge was proper as under other than
honorable conditions.

12.  Army Regulation 635-206 (Discharge Misconduct (Fraudulent Entry,
Conviction by Civil Court, and Absence Without Leave or Desertion)), in
effect at that time, set forth the basic authority for the separation of
enlisted personnel for conviction by civil court.  Paragraph 33 of the
regulation provided, in pertinent part, that Soldiers convicted by civil
authorities would be considered for separation.  An undesirable discharge
was normally considered appropriate.  Paragraph 37 of the regulation
provided, in pertinent part, that the convening authority would direct
reduction to the lowest grade by the reduction authority under the
provisions of Army Regulation 600-200.




13.  Army Regulation 600-200 (Enlisted Personnel Management System),
chapter 7, at the time provided policy and guidance on the promotion and
reduction of enlisted personnel.  In pertinent part, it states that, upon
determination by the general court-martial authority that an individual is
to be discharged from service under other than honorable conditions, the
individual will be reduced to the lowest enlisted grade.

14.  Title 10, U.S. Code, section 972 (Members:  effect of time lost),
subsection (a) states that an enlisted member who (1) deserts; (2) is
absent for more than 1 day without proper authority; (3) is confined by
military or civilian authorities for more than 1 day in connection with a
trial, whether before, during, or after the trial; or (4) is incapacitated
for duty due to intemperate use of drugs or alcohol or because of disease
or injury resulting from his misconduct; is liable to make up that lost
time.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), 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.

16.  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.

17.  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 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 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


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his creditable active duty service should
be taken into consideration for a discharge upgrade.  Records show that
during the applicant's 14 months of service, he received one Article 15,
was confined by civilian authorities, was charged with murder, and was
convicted of voluntary manslaughter.  Based on these facts, the applicant’s
service clearly did not meet the standards of acceptable conduct and
performance of duty for Army personnel that are required for issuance of a
general discharge.

2.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.  He had the
opportunity to make a statement in his own behalf at the time.  He failed
to take advantage of that opportunity.

3.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

4.  The applicant contends that his effective date on his DD 214 is
incorrect and that it exceeds his three-year enlistment.  However, records
show that the applicant was in civilian confinement pending trial.  Because
he was convicted, in accordance with Title 10, U.S. Code, section 972 he
was required to make up that lost time (i.e. his expiration of term of
service was extended by 1 day for each day of lost time).

5.  The applicant further contends that his pay grade on his DD Form 214
should be corrected to show PV2 instead of PV1.  However, records show on
the date that the approving authority approved the applicant's separation
he directed that the applicant be reduced to the lowest enlisted grade
effective the approval date in accordance with regulation.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 May 1982, 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 11 May 1985.  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

__WTM__  __JTM __  __WDP _  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.




                                  ___ Mr. Walter T. Morrison__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000690                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |1 February 2005                         |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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