RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          16 August 2005
      DOCKET NUMBER:  AR20040009110


      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             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |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, in effect, that his undesirable discharge (UD)
be upgraded to a general discharge (GD) under honorable conditions or a
fully honorable discharge.

2.  The applicant states, in effect, that at age 19, he was drafted into
the Army.  His father was in the Army; therefore, his parents believed that
this was best for him.  He had good parents and he tried to be a good
Soldier and live up to their expectations.  However, his mother passed away
while he was on active duty and dealing with her death was hard.  Sometime
after his mother passed away, his father passed away and his life changed,
he went in and out of prison.  At age 57, he is trying to get his life
together.  He requests that the board review his record and make a fair
determination.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
2 October 1974.  The application submitted in this case is dated 18 October
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 limitation 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 27 March 1968, at age 20, the applicant was inducted into the Army
of the United States with a moral waiver, as a result of burglary
conviction in 1965 and suspicion of grand theft of an automobile in 1968.
He was trained in military occupational specialty (MOS) 76Y (Supply).

4.  The available evidence indicates the applicant left Indiantown Gap
Military Reservation, Annville, Pennsylvania enroute to the Overseas
Replacement Station, Fort Dix, New Jersey.  He did not report was declared
absent without leave (AWOL) on 16 December 1968.
5.  On 24 July 1973, while still in an AWOL status, the applicant pled
guilty in the Superior Court of California, County of Los Angeles, to
robbery in the first degree (a felony).  He was found guilty pursuant to
his plea and sentenced to serve in the California State Prison for the term
prescribed by law (which is not specified in the Judgment).  A second
unidentified charge was dismissed.  Further, it was ordered that the
applicant be remanded into the custody of the Sheriff of Los Angeles County
until delivered into the custody of the Director of Corrections, California
State Prison, Chino.  Prior to being convicted, the applicant had been held
in custody at the California Rehabilitation Center for 120 days until he
was deemed not suitable and returned to the county jail where he had been
held for 146 days for the act for which he was convicted.

6.  Orders Number 304, Headquarters, United States Army Training Center,
Fort Ord, dated 31 October 1973, assigned the applicant to Ford Ord,
California, effective that date, for administrative disposition.

7.  On 21 November 1973, the applicant was notified his unit commander's to
recommend that he be separated with a UD under the provisions of Army
Regulation 635-206, due to a civil conviction.

8.  On 28 December 1973, the applicant indicated in a written statement
that he did not intend to appeal his conviction.

9.  On the same date, while in civilian confinement, the applicant
acknowledged that he understood the basis for the intended recommendation
and that he had been advised of his rights.  He also requested that he be
appointed a military legal counselor and that that his case be considered
by a board of officers.  He did not submit a statement in his own behalf.

10.  On 18 July 1974, the applicant was notified that an administrative
separation hearing would be conducted on 16 August 1974 to determine
whether he should be separated due to a civil conviction prior to the
expiration of his term of service.

11.  On 16 August 1974, the applicant did not personally appear before the
administrative separation board.  He was represented by his counsel.

12.  The board determined the applicant was undesirable for further
retention in the military because of a conviction by a civil court.  The
board recommended that the applicant be discharged from the service because
of misconduct (conviction by civil court) with a UD.  Competent authority
approved the recommendation and directed the issuance of a UD under the
provisions of Army Regulation 635-206, due to civil conviction.
13.  The applicant's DD Form 214 shows that, on 2 October 1974, he was
discharged with a UD under the provisions of Army Regulation 635-206, due
to civil conviction.  The applicant was separated with temporary records
and his affidavit.  Therefore, the DD Form 214 does not show the
applicant's active military service.  However, it does show that he had
1,780 days of lost time between 16 December 1968 and 30 October 1973, due
to being AWOL and in civilian confinement.

14.  The available evidence does not indicate the applicant applied to the
Army Discharge Review Board under that board's 15-year statute of
limitation.

15.  Army Regulation 635-206, then in effect, stated, in pertinent part,
that an individual will be considered for discharge when an individual is
initially convicted by civil authorities of an offense which involves moral
turpitude, regardless of the sentence received or maximum punishment
permissible under any code.  At the time, a UD was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  A civil court convicted the applicant of robbery of the first degree (a
felony).  His conviction by civil authorities obligated military
authorities to consider him for discharge.  The applicant was issued a UD
in accordance with the recommendations of an administrative separation
board.  In such cases, retention is normally only considered in
exceptionally meritorious cases when clearly in the best interests of the
Army.

2.  The applicant's characterization of service was appropriate because the
quality of his service was not consistent with the Army's standards for
acceptable personal conduct and performance of duty by military personnel.


3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 October 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
1 October 1977.  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

__mhm___  __jtm___  __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.



                                  Melvin H. Meyer
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009110                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050816                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19741002                                |
|DISCHARGE AUTHORITY     |AR635-206                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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