RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 November 2005
      DOCKET NUMBER:  AR20050003414


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 was not informed of the discharge actions.  His
sister had his discharge papers, but she died and the papers were lost.  He
was led to believe the discharge was general under honorable conditions.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty), his DD Form 215 (Correction to DD Form 214), and his
identification card.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 June 1974.  The application submitted in this case is dated
25 February 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 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 was enlisted in the Regular Army on 7 August 1970 for a
period of three years.  He completed basic combat training (BCT) at Fort
Campbell, Kentucky and advanced individual training (AIT) at Fort Polk,
Louisiana.  Upon completion of AIT, he was awarded military occupational
specialty 11B (Light Weapons Infantryman).  He was promoted to private E-2
on 7 November 1970.  He was later reassigned to Fort Benning, Georgia for
basic airborne training.

4.  On 5 April 1971, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for being absent without leave
(AWOL) from 15 March 1971 through 22 March 1971.  His punishment consisted
of a forfeiture of $30.00 pay per month for one month, restriction to the
40th Company area for a period of 7 days and 7 days extra duty.

5.  Item 42 (Remarks) on the applicant's DA Form 20 (Enlisted Qualification
Record) shows he was in the hands of civil authorities in Miami Beach,
Florida from 23 March 1971 through 26 March 1971.  His DA Form 20 also
shows he was transferred to military authorities at Homestead Air Force
Base, Florida then transferred to military authorities at Fort Gordon,
Georgia and returned to duty on 2 April 1971.

6.  Item 42 on the applicant's DA Form 20 shows he was in the hands of
civil authorities in Rochelle, Illinois from 20 April 1971 through 19 May
1971.  His DA Form 20 shows he was transferred to military authorities at
Rochelle, Illinois then to military authorities at Fort Riley, Kansas.

7.  On 9 August 1971, the applicant was convicted by a special court-
martial of being AWOL from 19 May 1971 through 12 July 1971.  He was
sentenced to confinement at hard labor for 45 days, reduction to private E-
1, a forfeiture of $50.00 pay per month for 2 months (45 days of
confinement at hard labor in excess of 31 days was suspended for 2 months
at which time it was remitted).

8.  The applicant's DD Form 214 shows periods of lost time from 26 October
1971 through 27 October 1971; 17 November 1971 through 17 December 1971; 17
April 1972 through 10 June 1973; and 11 June 1973 through 28 June 1974.

9.  On 3 August 1973, the applicant was found guilty by the State of
Florida, Pinellas County Circuit Court for violation of Florida's drug
abuse law.  He was sentenced to confinement for 3 years less the time spent
in the County Jail of Pinellas County, Florida, to wit: 109 days.  In
addition, he was found guilty of breaking and entering a building other
than a dwelling house with intent to commit a felony.  He was sentenced to
confinement for 3 years less the time spent in the County Jail of Pinellas
County, Florida.  The sentence imposed would run concurrently with that
sentence imposed in the previous charge.

10.  In a 22 February 1974 statement, the unit commander indicated the
applicant was unavailable to take his separation physical and mental
evaluation examination at that time due to civil confinement.

11.  On 25 February 1974, the unit commander recommended that the applicant
be discharged before the expiration of his term of service under the
provisions of Army Regulation 635-206 by reason of civil conviction with
issuance of an undesirable discharge.  In the unit commander's
recommendation, he indicated that the applicant was advised of the
elimination action on 7 February 1974 and he elected appearance before a
board of officers.

12.  On 1 March 1974, the intermediate commander recommended approval.  The
commander indicated the applicant requested his case be presented before a
board of officers and that he be represented by counsel.
13.  A board of officers convened on 22 April 1974 and recommended that the
applicant be discharged from the service under the provisions of Army
Regulation 635-206 because of conviction by a civil court with issuance of
an Undesirable Discharge Certificate.

14.  On 7 June 1974, the separation authority approved the recommendation
of the board of officers that the applicant be discharged from the service
because of conviction by a civil court under the provisions of Army
Regulation 635-206 with issuance of an undesirable discharge.

15.  The applicant was discharged from active duty on 28 June 1974.  He
completed 1 year, 1 month and 12 days active military service with 1,000
days of lost time due to AWOL and confinement.

16.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) within its 15-year statute of limitations.

17.  Army Regulation 635-206, in effect at that time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 33a of the
regulation provided, in pertinent part, that members convicted by civil
authorities would be considered for separation.  An undesirable discharge
was normally considered appropriate.

18.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the Soldier's
service generally has met the standards of acceptable conduct and
performance of duty for Army personnel, or is otherwise so meritorious that
any other characterization would be clearly inappropriate.  Where there
have been infractions of discipline, the extent thereof should be
considered, as well as the seriousness of the offense(s).

19.  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 administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The applicant's service record shows one Article 15 and one special
court-martial for AWOL.  In addition, his DD Form 214 shows periods of lost
time due to AWOL and confinement for a total of 1,000 days.  As a result,
his service did not meet the standards of acceptable conduct and
performance of duty to warrant an honorable discharge or general discharge.

3.  The applicant was convicted by a civil court for violating Florida's
drug abuse law and breaking and entering a building other than a dwelling
house with intent to commit a felony.  He was sentenced to 3 years
confinement for each charge, to be served concurrently.

4.  The applicant's contentions were noted.  However, there is no evidence
submitted or evidence of record which shows the actions taken in this case
were in error or unjust.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 June 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 27 June 1977.  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

JA______  TO______  CK______  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 Anderholm_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003414                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051101                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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