RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2005
      DOCKET NUMBER:  AR20040010569


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Maria J. N. Troup             |     |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.

2.  The applicant states, in effect, that he would like to explain the
circumstances that led to his discharge.  He states, that his father died
when he was a teenager, he was forced to shoulder part of the financial
burden for his mother and four siblings.  When he left for the Army his
mother had to carry on without his income.  She still had four young
children, one of which was autistic and needed special care.  He states,
that he was already worried about his family’s welfare, when his mother
wrote to say that her lights and water was turned off.  He became worried
because winter was closing in.  He asked his unit commander for emergency
leave, but was turned down.  He felt that he was their only hope, since no
one else would help.  Being young he made some very bad and rash choices
and he is sorry.  He further states, that his record will show that he was
a good soldier up to that point.  He has paid dearly for those mistakes
over the past 32 years.  In 1976, he was advised by the Army Discharge
Review Board that if he improved his life through education that they would
consider another review.  He has worked hard to make amends for the past.
He also worked to improve and better himself.  He is asking the Board to
consider the circumstances and help him remove this blot from his record.


3.  The applicant provides in support of his application the following:  A
self authored affidavit, a Certificate in Training from the Union Carbine
Nuclear Division, a Certificate as a Set-Up Operator for Machine Shop, a
Certificate of High School Equivalency, a Certificate in Mill & Cabinet
Making, a Certificate in Computer Science, a College Grade Transcripts and
four letters, dated around January 1970, verifying the family’s hardship.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 June 1972, the date of his discharge from active duty.
 The application submitted in this case is dated 11 November 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 record shows that he enlisted in the Regular
Army on
12 August 1969.  He completed the required training and was awarded
military occupational specialty 11B10 (Light Weapons Infantryman).  The
highest grade he attained was pay grade E-3.

4.  On 21 January 1970, the applicant requested a compassionate
reassignment. The applicant’s record indicates that their were family
problems.  The unit commander approved his request, because the applicant’s
record had no derogatory information and his conduct and efficiency was
excellent at that time.

5.  On 3 February 1970, the applicant’s request for a compassionate
reassignment was denied by the battalion commander.  The stated reason for
the denial was that the request for reassignment did not meet the criteria
for approval and that the application will not be resubmitted without
additional substantiating documents to support the request.

6.  On 10 March 1970, the applicant accepted nonjudicial punishment (NJP),
for failure to go to his appointed place of duty at the prescribed time.
His imposed punishment was a forfeiture of $30.00 pay and a reduction to
pay grade E-2.
On 16 March 1970, the punishment of a forfeiture of $30.00 pay to the
extent that it exceeds $29.00 was set aside and all rights, privileges, and
property affected.

7.  On 18 June 1970, the applicant accepted NJP for being absent without
leave (AWOL) from 15 to 17 June 1970 and for operating a vehicle in a
reckless manner.  His imposed punishment was a forfeiture of $35.00 pay, a
reduction to pay grade E-2 (suspended for 30 days), and 7 days extra duty.


8.  On 19 March 1971, the applicant was convicted by a Special Court-
Martial of being AWOL from 28 September 1970 to 15 January 1971.  He was
sentenced to confinement at hard labor for 4 months, a forfeiture of $50.00
pay per month for 4 months and a reduction to pay grade E-1.  On 2 April
1971, the sentence was approved and duly executed, but that portion thereof
adjudging confinement at hard labor for 4 months was suspended for 4
months, at which time, unless sooner vacated.

9.  On 21 April 1971, the applicant was reported for being AWOL.  He was
returned to military control on 7 May 1971.

10.  On 10 May 1971, the applicant was reported for being AWOL.  On 27 May
1971, he was dropped from the rolls from his unit as a deserter.

11.  On 7 January 1972, the applicant sent his unit commander a letter
informing him that he had been arrested by civil authorities for burglary.
In March 1972, the applicant was convicted by the Circuit Court of Bedford
County, Tennessee, for burglary 3rd degree and jail escape.  He was
sentenced to 3 years confinement in the Tennessee State Penitentiary.

12.  On 22 March 1972, the applicant was notified in 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 the
applicant of the rights available to him.

13.  In April 1972, the applicant acknowledged that he was advised of the
basis for his separation under the provisions of Army Regulation 635-206,
for civil conviction.  The applicant indicated that he waived his right to
counsel and also indicated that he did not provide statements on his own
behalf.

14.  The applicant also indicated in his statement that he was aware that
as a result of the issuance of an undesirable discharge 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.

15.  On 28 April 1972, the unit commander submitted a recommendation for
the applicant’s discharge under the provisions of paragraph 33a of Army
Regulation 635-206, by reason of misconduct (civil conviction).  The unit
commander cited the applicant’s conviction by a civil court for felony
burglary as the basis for the discharge recommendation.

16.  On 16 June 1972, the separation authority directed that he be
discharged under the provisions of Army Regulation 635-206, by reason of
misconduct (civil conviction), and directed that the applicant receive an
undesirable discharge.  On 27 June 1972, the applicant was discharged
accordingly.

17.  The separation document (DD Form 214) issued to the applicant upon his
separation shows that he completed a total of 1 year and 5 months of
creditable active military service and that he had accrued 526 days of time
lost.

18.  The applicant provides in support of his application the following:  A
self authored affidavit, a Certificate in Training from the Union Carbine
Nuclear Division, a Certificate as a Set-Up Operator for Machine Shop, a
Certificate of High School Equivalency, a Certificate in mill &
Cabinetmaking, a Certificate in Computer Science, a College Grade
Transcripts and four letters, dated around January 1970, verifying the
family’s hardship.

19.  On 4 October 1976, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and it voted to
deny the applicant’s request for an upgrade of his discharge.

20.  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
Undesirable discharge was normally considered appropriate for members
separating under this provision of the regulation.

21.  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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

22.  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.

23.  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 Board 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 contention that due to circumstances, the punishment he
received was too severe and the supporting documents that he provided were
carefully considered.  However, the mitigating factors presented, to
include the applicant’s his good post conduct are not sufficiently
mitigating to warrant an upgrade of his discharge at this late date.

2.  The evidence of record also reveals that the applicant had a record of
AWOL related disciplinary infractions prior to the civil conviction that
ultimately led to his discharge.  Further, his record reveals no acts of
valor, significant achievement, or service warranting special recognition.
Therefore, it is concluded that his UD accurately reflects the overall
record of his short and undistinguished service.

3.  The applicant's contentions regarding his post service achievements and
conduct were considered.  However, good post service conduct alone is not a
basis for upgrading a discharge.

4.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with the governing regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 4 October 1976.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 3 October 1979.  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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KAN __  __WDP _  __MJNT _  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.




                                  ___Kathleen A. Newman___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010569                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050823                                |
|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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