RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 March 2005
      DOCKET NUMBER:  AR20040002806


      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. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |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, in effect, that his undesirable discharge (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was a good Soldier and tried
to go to Vietnam.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 7 April 1971.  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 limitations 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 record shows that he was inducted into the Army and
entered active duty on 25 April 1968.  He was trained in, awarded and
served in military occupational specialty (MOS) 63C (Track Vehicle
Mechanic) and the highest rank he attained while serving on active duty was
specialist four (SP4).

4.  The applicant’s record shows that during his active duty tenure, he
earned the National Defense Service Medal and Sharpshooter Qualification
Badge with
Rifle Bar.  His record documents no acts of valor, significant achievement,
or service warranting special recognition.

5.  The applicant’s record reveals a disciplinary history that include his
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on three separate
occasions and a summary court-martial conviction.
6.  The record shows the applicant accepted NJP on the following dates for
the offence(s) indicated:  9 October 1969, for being absent from his place
of duty without proper authority; 20 October 1969, for being absent from
guard detail; and 6 April 1970, for failing to make bed check.

7.  On 5 May 1970, the applicant plead and was found guilty by a summary
court-martial of three specifications of violating Article 134 of the UCMJ
by breaking restriction.  The resultant sentence included confinement at
hard labor for 30 days, forfeiture of $50.00 and reduction to private/E-1
(PV1).

8.  On 29 January 1970, the applicant was arrested and confined by civilian
authorities in the Republic of Panama.  On 11 September 1970, he was
released from confinement.  On 28 September 1970, he was arrested and
confined on charges of possession of marijuana.

9.  The specific facts and circumstances surrounding the applicant’s
discharge processing are not available for review.  The evidence does
include a properly constituted DD Form 214 that shows on 7 April 1971, the
applicant was separated under the provisions of Section VI, Army Regulation
635-206, by reason of misconduct (civil court conviction) and that he
received an UD.

10.  The applicant’s DD Form 214 shows that at the time of his discharge,
he had completed a total of 2 years, 1 month and 15 days of creditable
active military service and had accrued 302 days of time lost due to civil
and military confinement.

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

12.  Army Regulation 635-206, in effect at the time, provided the authority
for the administrative separation or retention of enlisted personnel who
had committed an act and or acts of misconduct.  Section III of that
regulation prescribed the standards and procedures for processing cases of
individuals who, during their current term of active military service, had
been convicted by a civil court.  An UD was normally considered appropriate
for members separating under this provision of the regulation.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was a good Soldier was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  The available evidence is void of a discharge packet containing the
specific facts and circumstances concerning the events that led to the
applicant’s discharge.  However, there is a properly constituted DD Form
214 on file.  This document identifies the reason and characterization of
the discharge.  As a result, there is a presumption of Government
regularity in the discharge process.

3.  Lacking evidence to the contrary, it is presumed that all requirements
of law and regulation were met and the rights of the applicant were
protected throughout the separation process.

4.  The available evidence confirms that the applicant had an extensive
disciplinary history of military infractions prior to the civil conviction
that ultimately led to his discharge.  Further, there is no evidence to
show that his service was sufficiently meritorious to mitigate the serious
misconduct that led to his discharge.

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 7 April 1971.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 6
April 1974. 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

___RR __  ___ALB _  ___REB _  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.




            ____Allen L. Raub_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002806                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/03/24                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/04/07                              |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |Misconduct - Civil Conv                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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