RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 August 2005
      DOCKET NUMBER:  AR20050001379


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Vick                    |     |Chairperson          |
|     |Mr. Ronald Weaver                 |     |Member               |
|     |Mr. Robert Rogers                 |     |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 undesirable discharge be upgraded.

2.  The applicant states he committed no offense to the Armed Services and
that he served over ten years and received three honorable discharges.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 August 1973.  The application submitted in this case is
dated 19 January 2005.

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 was inducted on 13 March 1962 and honorably discharged on
17 May 1962 for immediate enlistment in the Regular Army.  He enlisted on
18 May 1962 for a period of 3 years.   He was honorably discharged on 13
March 1964 for immediate reenlistment.  He reenlisted on 14 March 1964 for
a period of 6 years.  He was honorably discharged on 18 January 1970 for
immediate reenlistment.  He reenlisted on 19 January 1970 for a period of 6
years.

4.  On 7 July 1971, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a forfeiture
of pay (suspended).

5.  On 15 December 1971, nonjudicial punishment was imposed against the
applicant for failure to repair and disobeying a lawful order.  His
punishment consisted of a forfeiture of pay, reduction to E-5 (suspended),
and restriction.

6.  The applicant went absent without leave (AWOL) on 3 July 1972.  On
17 August 1972, the applicant was arrested by civil authorities for
burglary.  He returned to military control on 13 September 1972.

7.  On 3 October 1972, the applicant was convicted by civil authorities for
burglary.  The judge ordered a pre-sentence investigation.
8.  The applicant went AWOL on 3 October 1972 and was apprehended by civil
authorities on 10 October 1972.  He went AWOL again on 11 October 1972 and
was apprehended by civil authorities on 4 March 1973.

9.  On 28 June 1973, the applicant was sentenced to 18 months confinement
for his civil offense (burglary).

10.  On 24 July 1973, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-206 for conviction by civil
court.

11.  On 27 July 1973, the applicant waived consideration of his case by a
board of officers, he waived representation by counsel, and he elected not
to submit a statement on his own behalf.  He also indicated that he did not
wish to appeal his civil conviction.  He also acknowledged that he might
expect to encounter substantial prejudice in civilian life in the event a
discharge under conditions other than honorable were issued and he might be
ineligible for many or all benefits as a veteran under both Federal and
State laws and that he might expect to encounter substantial prejudice in
civilian life.

12.  On 31 July 1973, the applicant’s unit commander initiated action to
separate him from the service under the provisions of Army Regulation 635-
206 for conviction by civil court.  He based his recommendation for
separation on the applicant’s civil conviction and recommended that the
applicant be issued an undesirable discharge.

13.  On 6 August 1973, the separation authority approved the recommendation
for discharge and directed the issuance of an undesirable discharge.

14.  Accordingly, the applicant was discharged on 14 August 1973 with an
undesirable discharge under the provisions of Army Regulation 635-206 for
conviction by civil court.  He had served 10 years, 5 months and 9 days of
creditable active service with 388 days of lost time due to AWOL and
confinement.

15.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

16.  Army Regulation 635-206, in effect at that time, set forth the basic
authority for the separation of enlisted personnel for misconduct.  The
regulation provided, in pertinent part, for the separation of personnel for
conviction by civil court.  An undesirable discharge was normally
considered appropriate.

17.  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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service during his last enlistment included
two nonjudicial punishments and 388 days of lost time.  It appears he also
committed a serious civil offense while in the Army.  As a result, his
record of service was not satisfactory and did not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
the applicant's record of service is insufficiently meritorious to warrant
a general discharge or an honorable discharge.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 14 August 1973; therefore, the time for the
applicant to file a request for correction of any injustice expired on 13
August 1976.  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

JV_____  RW_____  RR______  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 Vick_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001379                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19730814                                |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |Conviction by civil court               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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