RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 March 2005
      DOCKET NUMBER:  AR20040004399


      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. Thomas D. Howard Jr.          |     |Chairperson          |
|     |Mr. Robert J. Osborn II           |     |Member               |
|     |Mr. James B. Gunlicks             |     |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, in effect, that he did not have counsel during
questioning nor was he told about his rights.  He further states that he
doesn't remember being court-martialed because his discharge certificate
was mailed to him in prison.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 May 1961.  The application submitted in this case is dated
14 July 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 enlisted in the Regular Army on 24 August 1959 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 640.00 (Light Vehicle Driver).

4.  On 19 January 1961, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for misconduct.

5.  A DA Form 24 (Service Record) shows that the applicant was arrested on
7 March 1961 by civilian authorizes.  He was charged with passing a
counterfeit $20.00 denomination Federal Reserve Note.  He was convicted and
given an indeterminate sentence under the Federal Youth Correction Act at
the U.S. Reformatory, El Reno, Oklahoma.

6.  The applicant's discharge proceedings for civil conviction are not
available.

7.  An undated DA Form 19-24 (Statement) shows that the applicant elected
not to appeal his civil conviction.

8.  The applicant's DD Form 214 shows that he was discharged on 10 May 1961
under the provisions of section III of Army Regulation 635-206 (Discharge
Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence
Without Leave or Desertion)) for conviction by civil court.  He served 1
year, 6 months, and 13 days of creditable active service and had 65 days of
lost time due to civil confinement.  Item 11c (Reason and Authority) shows
the entry "Initially convicted by a civil court during current term of
active military service."

9.  On 20 April 1965, the ADRB (Army Discharge Review Board) considered the
applicant’s request to change his discharge.  The ADRB determined that his
discharge was proper as undesirable.

10.  Army Regulation 635-206, 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

11.  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.

12.  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.

13.  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 he did not have counsel during questioning
nor was he told about his rights.  He did not receive a military court-
martial, and presumably the "questioning" refers to his civil trial.

2.  In the absence of evidence to the contrary, it is presumed that the
applicant's administrative separation was accomplished in compliance with
applicable regulation and without procedural errors that would jeopardize
his rights.  Therefore, it is concluded that the characterization of the
applicant’s discharge was proper and equitable.

3.  Evidence of record shows that during the applicant's 18 months of
service he received one Article 15, was confined by civilian authorities,
and was charged and convicted of passing counterfeited denominations.
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 honorable or general discharge.

4.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 April 1965, 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 19 April 1968.  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

_ TDH    _  __ RJO__  __ JBG  _  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. Thomas D. Howard Jr ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004399                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |22 March 205                            |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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