RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 April 2005
      DOCKET NUMBER:  AR20040006868


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Ms. Linda M. Barker               |     |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 to a
general, honorable or medical discharge.

2.  The applicant states, in effect, that his discharge was based on
isolated acts of indiscipline, that he was not given counseling by his
command before his separation, that rehabilitative requirements were not
met or waived, that there was no diagnosis of a personality disorder as
required by regulation, that he was young and immature at the time of his
service, that he is a good citizen and asset to the community, that his
punishment was too severe by today's standards, that he did not waive his
right to a board hearing while he was in jail, that his service prior to
going absent without leave (AWOL) was good, and that racial discrimination
during his discharge played a key role in sentencing him to jail instead of
probation.

3.  The applicant provides an undated personal resume; a letter of support,
dated 20 February 2004; a letter of support, dated 30 June 2004; and a
Reduction in Force Lay Off Notice, dated 27 May 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 January 1972.  The application submitted in this case is
dated 7 August 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.  On 13 December 1950, the applicant was born.  He enlisted in the
Regular Army on 7 February 1969 for a period of two years and his records
on the same day reflect  his physical profile was 111121.  He successfully
completed basic training and advanced individual training and was awarded
military occupational specialty 94B (Cook).



4.  Records show that the applicant was AWOL for the period 10 October 1969
through 12 October 1969.

5.  Records show that on 22 October 1969, the applicant was apprehended by
the Seattle Police Department, Washington State and was charged with second
degree burglary.  On 21 January 1970, the applicant pleaded guilty and was
sentenced to 15 years in civilian confinement.

6.  On 6 February 1970, the applicant was placed on probation by civil
authorities and he was returned to military control.

7.  On 11 February 1970, the applicant underwent a neuropsychiatric
examination by a medical psychiatrist to process him for a possible
administrative separation from the service under the provision of Army
Regulation 635-206 (Discharge Misconduct (Fraudulent Entry, Conviction by
Civil Court, and Absence Without Leave or Desertion)).

8.  The psychiatrist determined that the applicant could distinguish right
from wrong and that he possessed sufficient mental capacity to understand
and participate in administrative or judicial proceedings.  The
psychiatrist noted that the applicant claimed to be highly motivated to
remain in the service and wanted another chance to show that he could
complete his tour of service without further trouble.

9.  On 13 May 1970, the applicant was convicted by a special court-martial
for wrongfully communicating a threat on 6 April 1970.  He was sentenced to
confinement at hard labor for 45 days and a forfeiture of $82.00 per month
for four months.

10.  On 19 October 1970, the applicant was apprehended by the Police
Department of Tacoma, Washington for negligent driving.  He was convicted
and fined $50.00 for the violation plus court cost in the amount of $35.00.

11.  On 16 December 1970, the applicant was apprehended by the Police
Department of Tacoma, Washington and charged with first degree forgery
(later dismissed).  However, he was found in violation of his probation for
not paying his court cost and continually failing to contact his parole
officer that led to the revocation of his probation.

12.  On 21 January 1971, the applicant was sent to the Washington
Corrections Center to serve his 15 year second degree burglary sentence for
violation of probation.

13.  On 8 March 1971, the applicant was notified by his company commander
that he was initiating a request to discharge him under the provisions of
Army Regulation 635-206.  The applicant was given 30 days from receipt of
the notification to reply.  He was advised that he could request
appointment of military counsel to represent him and in his absence,
represent his case before a board of officers.  He was also advised that he
may submit statements in his own behalf or waive the foregoing rights in
writing.

14.  A Statement of Appeal Letter dated 27 March 1971 shows the applicant
did not intend to appeal his civil conviction.  He requested that JAG
(Judge Advocate General) officer, Captain R---, be informed of his
whereabouts and his situation.  He stated, with the consent of Captain R---
, he preferred Captain R--- to handle his case if it was possible.

15.  A letter dated 25 October 1971 shows that the applicant stated he did
not wish to remain in the service and requested orders be cut for an
undesirable discharge.

16.  On 5 November 1971, the applicant was advised of the basis for his
separation under the provisions of Army Regulation 635-206.  He indicated
that he waived representation by military or civilian counsel; he waived
consideration of his case by a board of officers; and he did not desire to
provide a statement in his own behalf.

17.  The applicant also indicated that he was aware that as a result of the
issuance of a discharge under conditions other than honorable that 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 based on this undesirable discharge.

18.  A letter dated 9 November 1971 shows that the applicant requested to
be informed as soon as his discharge was approved.  He stated that he had a
job set up and wanted to be released in time to start working at his
civilian job.

19.  On 7 December 1971, the applicant’s commander submitted a
recommendation to discharge the applicant under the provisions of Army
Regulation 635-206.  The commander based the reason on the applicant's
conviction by civil court.

20.  On 5 January 1972, the appropriate authority approved the
recommendation to administratively separate the applicant and directed he
receive an undesirable discharge under the provisions of Army Regulation
635-206 for civil conviction.  On 12 January 1972, he was separated after
completing 7 months and 11 days of creditable active service and had 570
days of lost time due to AWOL and confinement.

21.  On 9 October 1973, 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.

22.  On 7 April 1979, the ADRB reconsidered the applicant’s request to
change his discharge.  The ADRB again determined that his discharge was
proper as undesirable.

23.  The applicant submitted a letter of support from a Senior Program
Manager of The Southland Group, dated 20 February 2004.  The author stated
in effect that the applicant had gained the respect of management and his
peers and that he was an asset to the company.

24.  The applicant submitted a letter of support from his mother, dated 30
June 2004.  The author stated that her son as a child was abused by his
father both mentally and physically.  She further stated that her husband
was a good provider but had a drinking problem.  She stated that her son
has picked himself up from a life of homelessness to become a fine
upstanding citizen.

25.  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 6 of the regulation provided, in pertinent part, that
individuals unable to appear in person before a board of officers by reason
of confinement by civil authorities
will be advised by registered mail of the proposed discharge action, the
type of discharge certificate that may be issued, and the fact that action
has been suspended to give him the opportunity to exercise the following:
(1) To request appointment of military counsel to represent him and, in the
individual's absence, present his case before a board of officers; (2) To
submit a statement in his own behalf; (3) To waive the foregoing rights in
writing or by declining to reply to the letter of notification within 30
days.  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.

26.  Army Regulation 635-200, Chapter 14, the regulation currently in
effect, establishes policy and prescribes procedures for separating
personnel for misconduct because of minor disciplinary infractions, a
pattern of misconduct, commission of a serious offense, conviction by civil
authorities, desertion, and absence without leave.  A discharge under other
than honorable conditions is normally appropriate for a Soldier discharged
under this chapter.  However, the separation authority may direct a general
discharge if such is merited by the Soldier's overall record.

27.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.

28.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of
Medical Fitness) provides that the basic purpose of the physical profile
serial system is to provide an index to the overall functional capacity of
an individual and is used to assist the unit commander and personnel
officer in their determination of what duty assignments the individual is
capable of performing and if reclassification action is warranted.  Four
numerical designations (1-4) are used to reflect different levels of
functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1"
under all factors indicates that an individual is considered to possess a
high level of medical fitness and, consequently, is medically fit for any
military assignment.  Numerical designators "2" and "3" indicate that an
individual has a medical condition or physical defect which requires
certain restrictions in assignment within which the individual is
physically capable of performing military duty.

29.  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.

30.  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.

31.  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 was not given counseling by his command
before his separation from the service.  Army Regulation 635-206 did not
require that the Soldier be counseled or given a rehabilitation transfer
prior to separation for civil conviction.  Records show that he declined to
appeal his civil conviction and that he was advised of his rights by his
command.  Evidence of record further shows that he waived consideration of
his case by a board of officers and that he did not provide statements on
his own behalf.  It is noted that, while in civil confinement, the
applicant requested by a letter to his command that he be issued an
undesirable discharge.

2.  There is no evidence of record and the applicant has not provided
evidence that shows he was diagnosed with a personality disorder.  There is
no medical evidence of record that shows the applicant had any illness or
medical problem prior to his discharge on 12 January 1972.  Prior to his
civil conviction records show that his physical profile was 111121.  It
appears he was not eligible for referral to the Physical Disability System
even had he not been in civil confinement.

3.  Records show that the applicant was 18 years and 2 months old at the
time his active service began.  He successfully completed basic combat
training and advanced individual training and knew the Army's standards of
conduct.  Therefore, his contention that he was young at the time of his
offenses does not mitigate his indiscipline.

4.  The applicant contends that under today's standards he would have
received a better form of discharge.  Under today's standards the applicant
could receive the same characterization of service for the same offenses.

5.  In the absence of evidence to the contrary, 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 his discharge was proper and equitable.

6.  Evidence of record shows that during the applicant's military service
he received one special court-martial, was confined by military and
civilian authorities, was charged and convicted of second degree burglary,
and of violating the terms of his probation.  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 an honorable or general discharge.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 April 1979, 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 6 April 1982.  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

__ JEA __  __ ENA _  __ LMB _  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. James E. Anderholm __
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040006868                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |7 April 2005                            |
|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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