RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          14 December 2004
      DOCKET NUMBER:  AR2004104244


      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:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane J. Armstrong            |     |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.

2.  The applicant states, in effect, that in 1969, when he and his twin
brother enlisted in the military under the "buddy plan," they believed they
would be together the entire 3 years they were obligated to serve.
However, upon completion of advanced individual training, his brother was
assigned to Vietnam and he was assigned to Fort Bragg, North Carolina.  He
left his unit in an absent without leave (AWOL) status, a civilian court
convicted him of stealing an automobile and he went to civilian prison for
2 years.  The next 25 years of his life was filled with crime, drug use and
alcohol abuse.  However, his life changed during his last period of
incarceration and he has committed his life to serving God.  He is a pastor
of a church in Springfield, Missouri and he is serving the Lord and helping
others whom are sometimes addicted, homeless, and helpless.

3.  The applicant provides in support of his request:

      a.  Certificate of License and Ordination Certificate which shows he
is a licensed minister.

      b.  A portion of his Army Regulation 635-206 elimination proceeding.

      c.  DD Form 214 (Armed Forces of the United States Report of Transfer
or Discharge) and an Undesirable Discharge Certificate, both issued on
30 September 1970.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 September 1970.  The application submitted in this case is
dated 1 January 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.  The applicant’s military record shows that he enlisted in the Regular
Army (RA) on 8 July 1969 under the RA enlistment option for a period of 3
years.

4.  Special Orders Number 131, dated 8 July 1969, from the Armed Forces
Examination and Entrance Station Louisville, Kentucky shows the applicant
enlisted on this date at this station.  It also shows the applicant
enlisted for the Regular Army enlistment option.  It does not show that he
enlisted for the "buddy basic plan."  However, other individuals listed on
this order did enlist for the "buddy basic plan."

5.  On 12 September 1969, the applicant completed basic combat training at
Fort Knox, Kentucky.

6.  On 16 March 1970, civilian authorities in Elizabethtown, Kentucky
apprehended the applicant and charged him with grand larceny of an
automobile.

7.  In the Hardin County Circuit Court, Elizabethtown, on 15 May 1970, the
applicant pled guilty to the above charge.  He was found guilty pursuant to
his plea and sentenced to serve 1 year in civilian confinement at the
Kentucky State Reformatory, Lagrange, Kentucky.

8.  On 15 June 1970, while in civilian confinement, the applicant was
notified his unit commander intended to recommend that he be separated
under the provisions of Army Regulation 635-206, due to a civil conviction
with a UD.  The applicant was advised of his rights.  On the same date, the
applicant requested that he be appointed a military legal representative
and that that his case be considered by a board of officers.

9.  The commander stated that in addition to the civilian conviction, the
applicant had three periods of absence without leave (AWOL) (17-28 December
1969;
4 January to 8 February 1970 and from 12-15 March 1970).  He also had two
periods of confinement (9 February to 10 March 1970, and from 12 March to
30 September 1970).  He had no courts-martial convictions and one
nonjudicial punishment, which is no longer available.

10.  On 26 August 1970, the applicant's legal representative was notified
that an administrative separation hearing would be conducted to determine
whether the applicant should be separated due to a civil conviction with a
UD prior to the expiration of his term of service.

11.  On 9 September 1970, the applicant appeared before an administrative
separation board with counsel.  The board determined the applicant was
undesirable for further retention in the military because of a conviction
by a civil court.

12.  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 30 September 1970, he was
discharged under the provisions of Army Regulation 635-206, due to civil
conviction.  He had completed 5 months and 15 days of active military
service.  He also had 281 days of lost time due to being AWOL and in
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.  In May 1970, a civil court convicted the applicant of larceny of an
automobile. 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 30 September 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
29 September 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

__jlp___  ___le___  __dja___  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.


                                  Jennifer L. Prater
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104244                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041214                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19700930                                |
|DISCHARGE AUTHORITY     |AR635-206                               |
|DISCHARGE REASON        |A61.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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