RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 April 2005
      DOCKET NUMBER:  AR20040008068


      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. John Infante                  |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Peter B. Fisher               |     |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 be
upgraded to a general (under honorable conditions) discharge.

2.  The applicant states, in effect, he was told that his discharge would
be automatically upgraded to general (under honorable conditions) six
months after his discharge.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge) and three letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 May 1970.  The application submitted in this case is dated 21
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 enlisted in the Regular Army on 14 February 1969.  He
successfully completed basic training and did not complete his advanced
individual training.

4.  On 14 April 1969, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a
lawful order.

5.  On 25 April 1969, the applicant accepted NJP under Article 15, UCMJ for
failure to be at his appointed place of duty.

6.  Records show that on 13 May 1969, the applicant was arrested by civil
authorities and charged with robbery.

7.  Records show that on 22 August 1969, the applicant was convicted by
civil authorities of assault while armed with intent to commit robbery.  He
was sentenced to serve two to fifteen years in confinement.
8.  The applicant's discharge proceedings for civil conviction are not
available.

9.  The applicant's service personnel records do not contain the facts and
circumstances surrounding his separation process.  However, his DD Form 214
shows that he was discharged on 6 May 1970 under the provisions 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 3 month of creditable active service and had 352
days of lost time due to civil confinement.

10.  The applicant submitted three letters of support from two neighbors
and an associate that stated, in effect, they have known the applicant for
many years.  The letters show that he is reliable, that he works with the
youths and senior citizens of his community, and that he is a hard working
individual.

11.  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

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.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of the service or the
reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

2.  The applicant's records show that he received two Article 15s and was
convicted by civil authorities of assault while armed with intent to commit
robbery. He had completed 3 months of creditable active service with a
total of 352 lost days due to civil confinement.  Based on these facts, the
applicant’s service clearly did not meet the standards of acceptable
conduct and performance of duty for Army personnel which are required for
issuance of a general discharge.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 May 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 5 May 1973.  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

__JI____  __REB __  __ PBF __  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.




                                  _____ John Infante ______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008068                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |28 April 2005                           |
|TYPE OF DISCHARGE       |GD                                      |
|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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