RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 August 2005
      DOCKET NUMBER:  AR20050001421


      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, in effect, that his discharge under other than
honorable conditions be upgraded and his narrative reason for separation be
changed.

2.  The applicant states he was wrongfully accused and convicted in a
German court without proper representation.  He contends he was unarmed and
defending himself against a person that was armed with a knife.  He was
arrested for assault, the victim died, and he was charged with involuntary
manslaughter.  He also contends during the German court proceedings there
was an interpreter; however, no one spoke on his behalf.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on
31 August 1978.  The application submitted in this case is dated 18 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 enlisted on 14 August 1973 for a period of 4 years.

4.  On 6 September 1973, while in basic combat training, nonjudicial
punishment was imposed against the applicant for breaking restriction.  His
punishment consisted of a forfeiture of pay, restriction, and extra duty.

5.  On 21 November 1973, while in advanced individual training, nonjudicial
punishment was imposed against the applicant for failure to repair (two
specifications).  His punishment consisted of a forfeiture of pay,
restriction, and extra duty.

6.  The applicant was awarded military occupational specialty 11B (light
weapons infantryman).

7.  On 14 August 1974, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200 under the Expeditious
Discharge Program.  He acknowledged notification of his proposed discharge,
voluntarily consented to discharge from the Army, and elected not to make a
statement on his behalf.  On 27 August 1974, the separation authority
approved the recommendation and directed that the applicant be furnished a
general discharge.

8.  On 28 August 1974, the applicant was arrested by German authorities for
robbery and aggravated assault against a 60 year old German national with
an amputated left arm.  The victim died of his injuries on 13 September
1974.  On 31 October 1975, the applicant was convicted of manslaughter and
sentenced to 8 years of confinement.

9.  Discharge proceedings were initiated against the applicant to separate
him from the service under the provisions of Army Regulation 635-206 for
misconduct (conviction by civil court).

10.  On 24 November 1975, the applicant requested consideration of his case
by a board of officers.  A board of officers convened on 31 March 1976 to
determine whether the applicant should be eliminated from the service under
the provisions of Army Regulation 635-206.  The applicant testified that he
was 19 years old when the offense occurred, that he had consumed four
liters of wine the night of the incident, that he was sorry for what
happened, and that he planned to go to school to be an oceanographer after
his release from prison.  The board found that the applicant was
undesirable for further retention in the military service because of
conviction by civil court and conviction of an offense involving moral
turpitude.  The board recommended that the applicant be discharged from the
Army because of misconduct (conviction by civil court) with the issuance of
an undesirable discharge.  The action by the officer exercising general
court-martial jurisdiction is not available.

11.  Army Regulation 635-206 was superseded by Army Regulation 635-200,
chapter 14, effective 1 February 1978.

12.  The applicant was discharged with a discharge under other than
honorable conditions on 31 August 1978 under the provisions of Army
Regulation 635-200, chapter 14, for misconduct due to civilian conviction.
He had served 5 years and 18 days of total active service.

13.  Item 9c (Authority and Reason) on the applicant's DD Form 214 (Report
of Separation from Active Duty) shows the entry, "AR [Army Regulation] 635-
200 CHAP [chapter] 14 SEC [section] III SPD [separation program designator]
JKB."
14.  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.

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

16.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 A discharge under other than honorable conditions is normally appropriate
for a Soldier discharged under this chapter.

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.

19.  Army Regulation 635-5-1 (Separation Program Designators), in effect at
the time, prescribed the specific authorities (regulatory, statutory, or
other directives), the reasons for the separation of members from active
military service, and the SPDs to be used for these stated reasons.  The
regulation stated the reason for discharge based on SPD “JKB” was “Civilian
conviction” and the regulatory authority was Army Regulation 635-200,
Chapter 14.



DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was wrongfully accused and
convicted by a German civil court without proper representation, a sentence
imposed by civil authorities is not a matter under the jurisdiction of the
Army.  The applicant requested consideration of his case by a board of
officers and had an opportunity to voice his concerns.

2.  The applicant’s record of service included two nonjudicial punishments
and he was responsible for the death of a German national.  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 an honorable discharge or general discharge.

3.  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.

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

5.  The narrative reason for separation used in the applicant’s case is
correct and was applied in accordance with the applicable regulations.

6.  Records show the applicant should have discovered the alleged errors
now under consideration on 31 August 1978; therefore, the time for the
applicant to file a request for correction of any error expired on 30
August 1981.  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                 |AR20050001421                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780831                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 14                   |
|DISCHARGE REASON        |Misconduct due to civilian conviction   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |110.0200                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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