RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 June 2005
      DOCKET NUMBER:  AR20040007686


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Kenneth W. Lapin              |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he was convicted in a civil court
without due process.  He claims his court appointed attorney would not get
the witnesses he needed.  He claims he dismissed the attorney during his
trial and he was not defended properly.  He also states that he served 10
years and 5 year of parole without incident, and that since he got out of
jail 24 years ago, he has not been in trouble.

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 10 December 1969.  The application submitted in this case
is dated 23 September 1969.

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 he was inducted into the Army and entered
active duty on 8 June 1967.  He was trained in, awarded and served in
military occupational specialty 13A (Field Artilleryman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions), that he was initially promoted to
private first class (PFC) on 19 November 1967, and that this is the highest
rank he held while serving on active duty.

5.  Item 33 of the applicant’s DA Form 20 further shows that he was reduced
to private/E-2 (PV2) on 12 April 1968.  He was promoted back to PFC on 17
May 1968, and again reduced to PV2 on 11 September 1968.  He was also
reduced to private/E-1 (PV1) on 25 October 1968 and promoted back to PV2 on

3 November 1968.  Finally, he was reduced to private/E-1 (PV1) on
13 November 1969.

6.  The applicant’s DA Form 20 also shows that he served in the Republic of
Vietnam (RVN) from 5 November 1967 through 4 November 1968.  Item 41
(Awards and Decorations) shows that during his active duty tenure, he
earned the following awards:  National Defense Service Medal, Vietnam
Service Medal, Vietnam Campaign Medal with 60 Device, Sharpshooter
Qualification Badge with
Rifle (M-14) Bar, Marksman Qualification Badge with Rifle (M-16) Bar and
2 Overseas Bars.

7.  The applicant’s record reveals a disciplinary history that includes his
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on the following four
occasions for the offense(s) indicated:  5 September 1967, for being absent
without leave (AWOL) from 4 through 5 September 1967; 9 April 1968, for
disobeying a lawful order; 11 September 1968, for not being at his place of
duty at the prescribed time; and 10 February 1969, for being AWOL from 9
through 10 February 1969.

8.  On 24 October 1968, a summary court-martial found the applicant guilty
of violating Article 91 of the UCMJ by disobeying the lawful order of a
superior noncommissioned officer; and of violating Article 92 of the UCMJ
by disobeying a lawful general regulation.  The resultant sentence included
a reduction to PV1, forfeiture of $50.00 and 60 days restriction.

9.  On 2 June 1969, the applicant was convicted of robbery in the first
degree by the District Court of Geary County, Kansas.  He was sentenced to
a term of 10 to 21 years confinement and hard labor at the Kansas State
Penitentiary.

10.  On 14 August 1969, the applicant was notified by a letter from his
unit commander that his separation, by reason of civil conviction, was
being contemplated.  In this letter, the unit commander also informed him
the rights available to him.

11.  On 5 September 1969, the applicant responded to the unit commander’s
separation notification letter.  He completed an election of rights, in
which he requested consideration of his case by a board of officers.  He
also requested appointment of a military counsel to represent him in his
absence and to present his case before the board of officers.

12.  On 24 October 1969, a board of officers convened to consider whether
or not the applicant should be eliminated from the service prior to his
expirations of term of service (ETS).  After conducting a hearing and
considering the evidence presented, the board of officers found the
applicant should be eliminated from service with an UD.

13.  On 13 November 1969, the separation authority directed that the
applicant be discharged under the provisions of Section VI, Army Regulation
635-206, by reason of conviction by a civil court, and that he receive an
UD.  On
10 December 1969, the applicant was discharged accordingly.

14.  The separation document (DD Form 214) issued to the applicant upon his
separation shows that he completed a total of 1 year, 8 months and 20 days
of creditable active military service and that he had accrued 286 days of
time lost due to AWOL and confinement.

15.  On 10 December 1969, the Army Discharge Review Board, after carefully
considering the applicant’s case, concluded that his discharge was proper
and equitable, and it voted to deny his request to upgrade his discharge.

16.  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 VI 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.

17.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records
(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’s contentions that he was denied due process during his
civil trial and that he has been a good citizen since leaving prison were
carefully considered.  However, these factors are not sufficiently
mitigating to warrant an upgrade of his discharge at this late date.

2.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with the governing regulation, to include
consideration of his case by a board of officers.  All requirements of law
and regulation were met and the rights of the applicant were fully
protected throughout the separation process.

3.  The evidence of record also reveals that the applicant had an extensive
disciplinary history of military infractions prior to the civil conviction
that ultimately led to his discharge.  Notwithstanding his RVN service, his
overall service record was not sufficiently meritorious to mitigate the
serious misconduct that led to his discharge.

4.  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.
5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 December 1969, the date the ADRB
last reviewed his case.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 9 December 1972. 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

___RJW_  __KWL __  ___DRT_  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.




            ____Raymond J. Wagner___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040007686                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/16                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1969/12/10                              |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |Civil Conviction                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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