RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           18 August 2005
      DOCKET NUMBER:  AR20050003735


      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             |
|     |Mrs. Victoria Donaldson           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. 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 undesirable discharge be
upgraded to a general discharge.

2.  The applicant states, in effect, that he was young and immature and did
not understand the weight of his actions.  The applicant continues that at
the time of the judgment against him, there was no evidence presented to
prove that he committed the crime of arson.

3.  The applicant contends that although he was absent without leave
(AWOL), he was not involved with the burning of the church.

4.  The applicant concludes that he has been burdened with this judgment
but that he now has to set the record straight.

5.  The applicant provides three character reference letters in support of
this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 March 1970, the date of his discharge from active duty.
 The application submitted in this case is dated 19 November 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 records show that his date of birth was 7 September
1944 and that at the age of 23 he enlisted in the Army.  Records further
show that the applicant entered active duty on 30 June 1967.  He was
trained in, awarded, and served in military occupational specialty 94B20
(Cook Helper).





4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions), that he was advanced to private/ pay
grade E-2 on 30 October 1967, and this was the highest rank he held while
serving on active duty. This form further shows he was reduced to private/
pay grade E-1 on 17 February 1970.

5.  The applicant’s records document no acts of valor, significant
achievement, or service warranting special recognition.  It does show that
during his active duty tenure, he earned the Marksman Qualification Badge
with Rifle (M-14) Bar.

6.  Item 44 (Time Lost) of the applicant's DA Form 20 shows that the
applicant was AWOL during the period 31 March 1968 through 6 April 1968.
This form also shows that the applicant was held in civil confinement by
the Texas Department of Correction from 7 April 1968 through 5 March 1970,
the date of his discharge.

7.  On 19 March 1969, the applicant entered a plea of guilty and was
adjudged to be guilty of felony arson by the District Court of Harrison
County, Texas.  He was sentenced to a term of not less than 2 nor more than
5 years of confinement at the Texas Department of Corrections.

8.  On 19 September 1969, the applicant was notified in a letter from his
unit commander that his separation, by reason of civil conviction, was
being contemplated.  In this letter, the unit commander also informed the
applicant of the rights available to him.

9.  On 22 September 1969, the applicant acknowledged that he was advised of
the basis for his separation under the provisions of Army Regulation 635-
206 (Personnel Separations) for civil conviction.  The applicant indicated
that he waived his right to counsel and also indicated that he did not
provide statements on his own behalf.

10.  The applicant also indicated that he was aware that as a result of the
issuance of an undesirable discharge that he may be ineligible for many or
all benefits as a veteran under both Federal and State laws, and that he
may expect to encounter substantial prejudice in civilian life based on
this undesirable discharge.

11.  The applicant also made a sworn statement in which he stated that he
did not intend to appeal the conviction and sentence of confinement for the
offense of felony arson imposed by the District Court of Harrison County,
Texas.

12.  On 22 January 1970, the unit commander submitted a recommendation for
the applicant’s discharge under the provisions of paragraph 33a of Army
Regulation 635-206, by reason of misconduct (civil conviction).  The unit
commander cited the applicant’s conviction by a civil court for felony
arson as the basis for the discharge recommendation.

13.  On 16 February 1970, the separation authority directed that the
applicant be discharged under the provisions of Army Regulation 635-206, by
reason of misconduct (civil conviction), and directed that the applicant
receive an undesirable discharge.  On 5 March 1970, the applicant was
discharged accordingly.

14.  The separation document (DD Form 214) issued to the applicant upon his
separation shows that he completed a total of 9 months and 1 day of
creditable active military service and that he had accrued 339 days of time
lost due to AWOL and civil confinement.

15.  The applicant provided three letters of support which state, in
effect, the applicant is a hard-working, honest and dependable person.

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

17.  Army Regulation 635-206, in effect at the time, provided the authority
for the administrative separation or retention of enlisted personnel who
had committed an act and or acts of misconduct.  Section VI of that
regulation prescribed the standards and procedures for processing cases of
individuals who, during their current term of active military service, had
been convicted by a civil court.  An
Undesirable discharge was normally considered appropriate for members
separating under this provision of the regulation.

18.  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.


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 contends that his undesirable discharge should be
upgraded to a general discharge because he was young and immature at the
time.

2.  Evidence of record shows that he was 23 years old at the time of his
enlistment into the Army and that he was 24 years old at the time that the
offense occurred.  There is no evidence that indicates that the applicant
was any less mature than other Soldiers of the same age who successfully
completed military service.

3.  Evidence of record confirms the applicant’s discharge processing was
accomplished in accordance with the governing regulation.  All requirements
of law and regulation were met and the rights of the applicant were fully
protected throughout the separation process.

4.  Evidence of record also reveals that the applicant had a record of an
AWOL related disciplinary infraction prior to the civil conviction that
ultimately led to his discharge.  Further, his record reveals no acts of
valor, significant achievement, or service warranting special recognition.
Therefore, it is concluded that his undesirable discharge accurately
reflects his overall record of short and undistinguished service.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 March 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 March 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

_RJW_____  _RR___  _JEV___  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 E. Vick_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003735                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/18                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/03/05                              |
|DISCHARGE AUTHORITY     |AR 635-206. . .                         |
|DISCHARGE REASON        |Misconduct (Civil conviction)           |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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