RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 June 2005
      DOCKET NUMBER:  AR20040006591


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Robert L. Duecaster           |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |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
characterized as under other than honorable conditions be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he deserves an honorable
discharge because he was a teenager.

3.  The applicant provides no documentation or other evidence in support of
his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 July 1971, the date of his discharge.  The application
submitted in this case is dated 23 June 2004 and was received on 2
September 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 military records show he was enlisted on 7 August 1967
for a period of 3 years.  He successfully completed basic combat and
advanced individual training and was awarded the military occupational
specialty 11B10 (light weapons infantryman).  The highest grade the
applicant held was corporal/pay grade E-4.

4.  Item 15 (Date of Birth) of the applicant's DD Form 4 (Enlistment Record
- Armed Forces of the United States) shows the applicant's date of birth as
5 August 1950.

5.  The applicant accepted nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice (UCMJ), on 20 September 1967, 18 October
1967, and 29 October 1970.  His offenses included failure to obey a lawful
order from a commissioned officer and absent without leave (AWOL) during
the periods from 17 to 18 September 1967, from 16 to 18 October 1967, and
from
17 October 1970 to 29 October 1970.
6.  On 21 February 1968, the applicant was convicted by a special court-
martial (SPCM) for AWOL during the period from 12 December 1967 to 2
February 1968.  The convening authority approved the sentence on 8 March
1989.

7.  Item 44 (Time Lost Under Section 972, Title 10 United states Code and
Subsequent to Normal Date ETS) of the applicant's DA Forms 20 (Enlisted
Qualification Record) show the applicant had nine periods of AWOL for a
total of 962 days, one period of confinement for 17 days, and one period of
civil confinement for 106 days.

8.  On 27 January 1971, the applicant's commander notified him that he was
initiating action to discharge him under the provisions of paragraph 33 of
Army Regulation 635-206 because of his conviction by a civil court.

9.  The commander advised the applicant of his right to have his case
considered by a board officers; to appear in person before a board
officers; to submit statements in his own behalf; to be represented by
counsel; to waive any of these rights; and to withdraw any waiver of rights
at any time prior to the date the discharge authority directs or approves
his discharge, and request his case be presented before a board of
officers.

10.  On 29 January 1971, the applicant was convicted by civilian
authorities of passing a forged instrument in writing.

11.  On 9 April 1971, the applicant submitted a statement acknowledging
that he had been advised by counsel of the basis for the contemplated
action against him under the provisions of Army Regulation 635-206 due to
conviction by a civil court.  The applicant waived consideration by a board
of officers and waived a personal appearance.  The applicant stated that he
was not submitting statements in his own behalf and that he waived counsel.


12.  The applicant also acknowledged that, as the result of issuance of an
discharge under conditions other than honorable; he may be ineligible for
many or all benefits as a veteran under both federal and state laws, and
that he may expect to encounter substantial prejudice in civilian life.

13.  On 30 April 1971, the applicant's commander recommended him for
discharge due to conviction by a civil court and that he be issued an
Undesirable Discharge Certificate.



14.  On 20 May 1971, the appropriate authority approved the recommendation
for discharge due to misconduct - conviction by a civil court, directed
that the applicant be reduced to the lowest enlisted grade and directed the
applicant be issued an Undesirable Discharge Certificate.

15.  The records contain a statement, dated 8 July 1971, from the
applicant's company commander who states that the applicant had been
confined by civil authorities since 30 March 1971.

16.  On 13 July 1971, the applicant was discharged under the provisions of
Section VI of Army Regulation 635-206 due to conviction of a civil court.
He had
2 years, 8 months, and 4 days active service and had 1085 days of time
lost.

17.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 25 January 1974, the ADRB reviewed and denied
the applicant's request for upgrade.  The ADRB determined that the
applicant's discharge was proper and equitable.

18.  The Department of the Army Special Discharge Review Program (SDRP) was
based on a memorandum from Secretary of Defense Brown and is often referred
to as the “Carter Program.”  It mandated the upgrade of individual cases in
which the applicant met one of several specified criteria and when the
separation was not based on a specified compelling reason to the contrary.
The ADRB had no discretion in such cases other than to decide whether
recharacterization to fully honorable as opposed to a general discharge was
warranted in a particular case.  An individual who had received a punitive
discharge was not eligible for consideration under the SDRP.  Absentees who
returned to military control under the program were eligible for
consideration after they were processed for separation.  Eligibility for
the program was restricted to individuals discharged with either an
undesirable, discharge UOTHC or a general discharge between 9 August 1964
and 28 March 1973, inclusive.  Individuals could have their discharges
upgraded if they met any one of the following criteria: wounded in action;
received a military decoration other than a service medal; successfully
completed an assignment in Southeast Asia; completed alternate service;
received an honorable discharge from a previous tour of military service;
or completed alternate service or excused there from in accordance with
Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to
the contrary to deny discharge upgrade were desertion/AWOL in or from the
combat area; discharge based on a violent act of misconduct; discharge
based on cowardice or misbehavior before the enemy; or discharge based on
an act of misconduct that would be subject to criminal prosecution under
civil law.

19.  Army Regulation 635-206 (Personnel Separations), in effect at the
time, set forth the basic authority for the separation of enlisted
personnel for misconduct (fraudulent entry, conviction by civil court, and
AWOL or desertion).  That regulation provided, in pertinent part, that an
individual will be considered for discharge when he has been initially
convicted by civil authorities, or action taken against him which is
tantamount to a finding of guilty, of an offense for which the maximum
penalty under the Uniform Code of Military Justice is death or confinement
in excess of 1 year.  An undesirable discharge was normally considered
appropriate.

20.  Army Regulation 635-200 (Personnel Separations), in effect at the
time, 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.

21.  Army Regulation 635-200, in effect at the time, 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 contends that his undesirable discharge characterized as
under other than honorable conditions should be upgraded to an honorable
discharge because he was a teenager.

2.  The evidence shows that the applicant was over 20 years old at the time
of his conviction by a civil court.  Therefore, the applicant's contention
is not supported by the evidence.

3.  Evidence shows that the applicant was properly and equitably discharged
in accordance with regulations in effect at the time.  The type of
discharge directed and the reasons for separation were appropriate
considering all the facts of the case.  The records contain no indication
of procedural or other errors that would tend to jeopardize his rights.

4.  The applicant’s record of service shows he had 1085 days of lost time.
As a result, his quality of service did not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
the applicant is not entitled to an honorable discharge.

5.  The applicant also received non-judicial punishment on three occasions
and was convicted by a special court-martial.  Therefore, he is not
entitled to an upgrade of his discharge from under other than honorable
conditions to a general discharge.

6.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

7.  The Board also reviewed the applicant's request using the criteria set
forth in the Special Discharge Review Board Program (SDRP).  The applicant
had not been in Vietnam, did not receive a personal military decoration or
receive an honorable discharge from prior service.  In addition, there were
compelling reasons to the contrary that his discharge should not have been
upgraded due to the seriousness of the applicant's civil conviction.

8.  Therefore, the applicant did not meet the criteria for an upgraded
discharge under the Special Discharge Review Board Program.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 July 1971, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 12 July 1974.  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

__MJF __  __TAP __  __RLD __  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.




                                         Robert L. Duecaster___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006591                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050623                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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