RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2005
      DOCKET NUMBER:  AR20050004648


      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:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Hubert Fry                    |     |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 correction of his records to show he was
discharged in the rank of specialist five (SP5).

2.  The applicant states his rank at the time of his discharge was SP5 and
not private E-1.  He states he was not absent without leave (AWOL) at the
time of his discharge.  He states he was living off-post and in the process
of moving back on post.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) and a DD Form 293
(Application for the Review of Discharge or Dismissal from the Armed Forces
of the United States) with supporting statements.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 9 March 1971.  The application submitted in this case is dated
22 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 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 enlisted in the Regular Army on 9 October 1967 for a
period of three years.  He completed basic combat training and advanced
individual training and was awarded military occupational specialty 51B
(Carpenter).  He served in Vietnam.

4.  The applicant was promoted to SP5 on 12 March 1969.

5.  On 2 August 1969, the applicant received nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for being derelict in
the performance of his duties.  He demanded trial by court-martial in lieu
of Article 15, UCMJ.  There is no record of charges being referred against
the applicant.

6.  On 21 October 1969, the applicant was tried and convicted of first
degree manslaughter in the Circuit Court of Russell County in Alabama.  He
was sentenced to six years confinement and his time to appeal would expire
on
22 June 1970.

7.  On 22 December 1969, the applicant was tried and convicted of assault
and battery in the Circuit Court of Russell County in Alabama.  He was
sentenced to six months hard labor to run concurrent with his October 1969
sentence.

8.  On 17 April 1970, the applicant's unit commander recommended that he be
discharged from the service under the provisions of Army Regulation 635-206
by reason of conviction by civil court.  The applicant's election of his
rights is not available.

9.  On 12 February 1971, the Circuit Court clerk of Russell County
indicated that the time for appeal had expired.

10.  On 9 March 1971, the separation authority approved the discharge under
the provisions of Army Regulation 635-206 for conviction by civil court
with issuance of an Undesirable Discharge Certificate.  The separation
authority directed the applicant be reduced to the lowest enlisted grade.

11.  The applicant was discharged with a characterization of service of
under other than honorable conditions (UOTHC) on 9 March 1971 with 2 years,
         11 months and 7 days total active military service with 176 days
of lost time.

12.  Headquarters, United States Army Infantry Center, Fort Benning,
Georgia Special Orders Number 68 dated 9 March 1971 shows the applicant was
discharged from active duty in the rank of private E-1.

13.  The applicant's DD Form 214 shows his rank as private in item 5a
(Grade, Rate or Rank) and his pay grade as E-1 in item 5b (Pay Grade).

14.  Army Regulation 600-200 (Enlisted Personnel Management System),
chapter 7 at the time, prescribed policies and procedures governing
promotion and reduction of Army enlisted personnel.  In pertinent part, it
stated that when the separation authority determines that a Soldier was to
be discharged from the Service under other than honorable conditions, the
Soldier would be reduced to the lowest enlisted grade.

15.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents prepared for Soldiers upon retirement, discharge, or release from
active military service or control of the Army.  It establishes
standardized policy for the preparation of the DD Form 214.  In pertinent
part it states that the DD Form 214 is a synopsis of the Soldier's most
recent period of continuous active duty.  It provides a brief, clear-cut
record of active Army service at the time of release from active duty,
retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SP5 on 12 March 1969.

2.  The evidence of record shows the applicant was convicted by a civilian
court in October 1969 and December 1969.  As a result, he was recommended
for discharge from active duty.  During the discharge process, the
separation authority directed that the applicant be issued an Undesirable
Certificate (i.e. a characterization of service of UOTHC) and reduced to
the lowest enlisted grade, private E-1.

3.  Based on Army Regulation 635-5, the DD Form 214 is meant to reflect his
status as of his last day of active duty on 9 March 1971.  As of that date,
he was a private.  Therefore, his DD Form 214 accurately reflects his rank
as private.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 March 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 March 1974.  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

BE______  HF______  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.




                                  Barbara Ellis_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050004648                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|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.       |129.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]