RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040011656


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Mr. Patrick McGann                |     |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 discharge be upgraded.

2.  The applicant states that he went to town with one of his friends who
said the car they were riding in belonged to him.  He states that he would
never have gone with his friend had he known the car was stolen.  He states
that his attorney told him to plead guilty and that because he was not
driving the car he would be turned over to the military for administrative
punishment.  He states his attorney was wrong and he was sent to prison
even though he really did nothing wrong.

3.  The applicant provides a copy of his separation order in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 December 1969.  The application submitted in this case
is dated
20 December 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.  Records available to the Board indicate the applicant entered active
duty on 14 December 1967.  He successfully completed basic and advanced
individual training and received excellent conduct and efficiency ratings
during that training. In May 1968, following completion of training he was
assigned to the Overseas Replacement Station in Oakland, California for
onward assignment to Vietnam.

4.  The applicant, however, did not arrive at the replacement station and
on
25 May 1968 he was placed in an AWOL (absent without leave) status.  He was
subsequently dropped from the rolls of the Army and apprehended by civilian
authorities on 15 July 1968.  He returned to military control on 24 July
1968 and was placed in the post stockade at Fort Campbell, Kentucky.  He
was released from confinement on 25 August 1968 and assigned duties as a
duty Soldier.

5.  The applicant was convicted by a special court-martial of AWOL on 28
August 1968.

6.  On 9 September 1968 the applicant again departed AWOL.  He was
apprehended again by civilian authorities on 24 December 1968 and returned
to military authorities that same day.  He was placed in confinement until
5 January 1969.  There is no indication of any disciplinary action
following that period of AWOL.  However, on 4 February 1969 the applicant
was again reported as AWOL.  His status was changed from AWOL to
confinement by civil authorities on 1 August 1969.

7.  On 17 September 1969 the applicant was convicted by a civilian court in
Owensboro, Kentucky after pleading guilty to charges of transporting a
stolen vehicle across interstate lines.  He was sentenced to 5 years in the
Federal Youth Center in Ashland, Kentucky.  The applicant was 20 years old
at the time of his conviction.

8.  In November 1969 the applicant was informed by his commander that he
was being considered for administrative elimination from the Army under the
provisions of Army Regulation 635-206 because of his conviction by a
civilian court.  He was informed that he could be issued an undesirable
discharge certificate as well as his right to submit statements in his own
behalf and to have his case presented to a board of officers by an
appointed military counsel.  The applicant waived his rights.

9.  In processing the recommendation for administrative separation, the
applicant's commander noted that since the applicant's induction on
14 December 1967, in addition to the civil conviction, the applicant had
two periods of AWOL, four periods of civil confinement and had been dropped
from the rolls of the Army three times.

10.  On 15 December 1969 the applicant was discharged as a result of his
civil conviction.  He had 6 months and 12 days of creditable service and
more than 560 days of lost time due to AWOL and confinement.  He was issued
an undesirable discharge certificate.

11.  Army Regulation 635-206, then in effect, provided, in pertinent part,
that an enlisted member who was convicted by a civilian court of an offense
for which the authorized punishment under the Uniform Code of Military
Justice (UCMJ) included confinement of 1 year or more was to be considered
for elimination.  When such separation was warranted an undesirable
discharge was considered appropriate.
12.  The maximum punishment under the UCMJ for larceny of a non military
motor vehicle was up to 5 years of confinement and wrongful appropriation
of a vehicle was up to 2 years confinement.

13.  There is no indication the applicant applied to the Army Discharge
Review Board to have his discharge upgraded.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board indicates the applicant was
discharged as a result of his civil conviction.  His successful completion
of basic combat training clearly indicated that the applicant was capable
of honorable service.

2.  His argument that he would not have gone with his friend had he known
the vehicle they were riding in was stolen and that he was told by his
attorney to plead guilty because he would merely be returned to military
control for administrative punishment is not supported by any evidence in
available records, or provided by the applicant.  The evidence which is
available suggests that the applicant had a long history of AWOL which
commenced following his successful completion of training when he was en
route to Vietnam.

3.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.  While his subsequent family problems
are certainly unfortunate, they do not serve as a basis to upgrade the
applicant's character of discharge as a matter of equity.

4.  In order to justify correction of a military record the applicant must
show, 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.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 December 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 December 1972.  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

___JH___  ___TO __  __PM ___  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.




                                  ______ James Hise_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011656                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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