RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 December 2005
      DOCKET NUMBER:  AR20050004157


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, in effect, that he did not know he could request
that his discharge be upgraded until talking with a retired sergeant.

3.  The applicant provides no additional evidence in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 June 1974, the date of his discharge from active duty.
 The application submitted in this case is dated 10 March 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's record shows he enlisted in the Regular Army on
30 December 1970.  The applicant completed basic and advanced individual
training.  He was trained in, awarded, and served in military occupational
specialty 64C20 (Military Transport Operator).

4.  The applicant's service records reveal a disciplinary history that
includes non-judicial punishment (NJP) under the provisions of Article 15
of the Uniform Code of Military Justice (UCMJ) for the following offenses
as indicated:  on 24 May 1972, for operating his military vehicle in excess
of the posted speed limit; on 29 August 1972, for operating his vehicle in
an unsafe manner in excess of the posted speed limit; on 3 October 1972, by
disobeying a lawful order not to operate his vehicle while his driving
privileges were suspended, and also operating his own vehicle in a unsafe
manner in excess of the posted speed limit with suspended post driving
privileges; and on 12 October 1972, by absenting himself from his place of
duty without proper authority.



5.  Item 44 (Time Lost) of the applicant's DA Form 20 shows he was AWOL
during the period 1 December 1972 through 3 December 1972 and from
6 December 1972 through 11 December 1972.  This form also shows that the
applicant was held in civil confinement in the Arkansas State Penitentiary,
Department of Correction from 9 May 1973 to 27 June 1974 the date of his
discharge.

6.  The facts and circumstances surrounding the applicant's discharge are
incomplete.  However, the applicant's record contains a letter of
notification, dated 11 April 1974, from the Assistant Adjutant General,
Headquarter, 1st Infantry Division and Fort Riley.  The letter of
notification requests the applicant appear before a Board of Officers.  It
also states that the applicant's counsel was notified.

7.  Headquarters, 1st infantry Division and Fort Riley, Kansas, Special
Orders Number 100, dated 21 May 1974, convened a board of review for
elimination to determine whether or not the applicant should appear before
the board for separation under Army Regulation 635-206 or Army Regulation
635-200 to be separated from the service prior to the expiration of his
term of service.

8.  A DA Form 1574 (Report of Proceedings by Investigating Officer), dated
23 May 1974, lists the board findings.  The board found that the applicant
should not be retained in the service.  It also determined that the
applicant should be separated under Army Regulation 635-206 and be issued
an undesirable discharge.

9.  On 12 June 1974, the separation authority directed that the applicant
be discharged under the provisions of Section VI, paragraph 37, Army
Regulation 635-206, by reason of misconduct (civil conviction), and
directed that the applicant receive an undesirable discharge.

10.  Headquarters, 1st Infantry Division and Fort Riley, Kansas, Special
Orders Number 122, dated 21 June 1974, issued discharge authority for the
applicant to be separated effective 27 June 1974.

11.  Headquarters, 1st Infantry Division and Fort Riley, Kansas,
Constructive Notice of Discharge letter dated 21 May 1974, requested the
Transfer Activity Branch, acknowledge receipt of the discharge authority,
in accordance with Special Orders Number 122, dated 21 June 1974.  The
applicant's discharge certificate and copies of his separation orders were
forwarded to him through the Superintendent, Intermediate Reformatory,
Tucker, Arkansas and on 27 June 1974, the applicant was discharged
accordingly.
12.  The DD Form 214 (Report of Separation from Active Duty), dated 27 June
1974, issued to the applicant upon his separation shows that he completed a
total of 2 years, 3 months, and 23 days of creditable active military
service and that he had accrued 339 days of time lost due to AWOL and civil
confinement.

13.  There are no available records to show that the applicant applied to
the Army Discharge Review Board in order to have a change in the reason or
character of discharge within the 15-year statute of limitations.

14.  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.

15.  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.

16.  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 discharge should be upgraded.

2.  In the absence of evidence to the contrary it is presumed that 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.  There is no evidence of record and the applicant provides none to show
that his separation was in error or unjust.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 June 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 26 June 1977.  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

__BI_____  _EM___  __DWS___  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.




            _Bernard P. Ingold__
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050004157                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/06                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/06/27                              |
|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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