RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 March 2005
      DOCKET NUMBER:  AR20040002371


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John E. Denning               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, in effect, that his undesirable discharge (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was denied his basic rights.
He claims he was denied the undivided assistance of an attorney, indictment
by cross section of community and that the grand jury was structurally
infirm.

3.  In support of his application, the applicant provides the documents
listed on the attachments and issues list included with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 4 November 1955.  The application submitted in this case
is dated
3 June 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’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.  This case is being
considered using reconstructed records that primarily consist of the
applicant’s separation document and the documents he submitted.

4.  The applicant’s DD Form 214 shows that he enlisted in the Regular Army
and entered active duty on 17 May 1955.  He was awarded and served in
military occupational specialty (MOS) 111.07 (Heavy Weapons Infantryman).
This document further shows he held the rank of private/E-1 (PV1) on the
date of his discharge.  It also shows that during his active duty tenure,
he earned the National Defense Service Medal and Parachutist Badge.  No
acts of valor, significant achievement, or service warranting special
recognition are recorded on the separation document.

5.  Item 8 (Reason and Authority for Separation) of the applicant’s DD Form
214 shows he was separated under the provisions of section IV, Army
Regulation
615-366, by reason of conviction by civil court.  The separation document
further shows that at the time of his discharge, he had completed a total
of 1 year,
5 months and 1 day of active military service and had accrued 116 days of
time lost.

6.  The existing record does not contain and the applicant did not provide
a copy of a separation packet containing the specific facts and
circumstances surrounding his separation processing.

7.  The applicant provides information on four United States Supreme Court
decisions that he claims impact his case.  The first two are regarding the
issue of mooting a criminal case.  The third pertains to the make up of a
grand jury being structurally infirm, and the fourth to entitlement to the
undivided effective assistance of counsel of choice.

8.  The applicant also provides a copy of the trial transcript and
indicates that there was no mention of an attorney, either appointed or
dual representation.  He claims the record is completely silent on the
matter and he was denied the undivided assistance of an attorney.  The
applicant provides no court documents related to a successful appeal of his
conviction.

9.  There is no indication that the applicant requested an upgrade of his
discharge from the Army Discharge Review Board within its 15-year statute
of limitations.

10.  Army Regulation 615-366, in effect at the time, set forth the
authority for the separation of enlisted personnel of the Army.  Section IV
provided policies and procedures for the separation of a member due to a
conviction by a civil court.  It stated, in pertinent part, that the
separation authority could order the discharge of members who were
initially convicted by a civil court.  An UD was normally considered
appropriate for members separated under this provision of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant that he was denied rights during his
civil trial, the supporting case law and trial transcript he submitted, and
the other supporting evidence he provided were carefully considered.
However, there is insufficient evidence to warrant granting the requested
relief.

2.  The available evidence is void of the specific facts and circumstances
surrounding the applicant’s discharge processing.  However, it does include
a properly constituted DD Form 214 that identifies the reason and
characterization of the applicant’s discharge.  Therefore, Government
regularity in the discharge process is presumed.

3.  The applicant’s separation document confirms he was discharged under
the provisions of section IV, Army Regulation 615-366, by reason of
conviction by a civil court.  This regulation provided for the discharge of
a member upon an initial conviction by a civil court.  It did not require
completion of the appellate process prior to discharge.  Absent evidence to
the contrary, it is concluded that all requirements of law and regulation
were met and the rights of the applicant
were fully protected throughout the separation process.  Further, his
discharge accurately reflects his overall record of short and
undistinguished service.

4.  The evidence of record confirms the applicant was convicted of assault
with the intent to murder by a civil court.  The applicant provided no
evidence that indicates this conviction was overturned on appeal, and he
agreed to begin serving his sentence subsequent to the conviction prior to
the outcome of appellate action.  Thus, absent an appellate decision
directly related to his case, the case law arguments presented by the
applicant do not provide a sufficient evidentiary basis to support an
upgrade of his discharge at this late date.

5.  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 this requirement.
6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 November 1955.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 3 November 1958.  However, he failed to 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

___JED _  ___JRS _  ___MJF__  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.




            ____John E. Denning ____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002371                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/17                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1955/11/04                              |
|DISCHARGE AUTHORITY     |AR 615-366                              |
|DISCHARGE REASON        |Civil Court Conviction                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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