RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         15 November 2005
      DOCKET NUMBER:  AR20050005170


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 (UD)
be upgraded.

2.  The applicant states, in effect, that he was young at the time he
served, and was experiencing personal problems.  He further states that
since he was released from prison on 2 July 1986, he has been clean and
just needs to be given a chance.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 November 1972.  The application submitted in this case
is dated 29 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’s record shows that he enlisted into the Regular Army and
entered active duty on 4 March 1971.  He was trained in, awarded and served
in military occupational specialty (MOS) 55A (Ammunition Helper), and the
highest rank he attained while serving on active duty was private/E-2
(PV2).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  His record reveals
a disciplinary history that includes the imposition of a Bar to
Reenlistment on 24 January 1972, for substandard duty performance and below
standard appearance.  It also shows that he accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on 20 March 1972, for failure to obey a lawful order.


5.  On 26 June 1972, the applicant was convicted of armed robbery and
murder in the second degree in the Cumberland County Superior Court, North
Carolina.  His sentence for armed robbery was not less than fifteen years
and not more than eighteen years in the state prison; and his sentence for
second degree murder was not less than 28 years and not more than 30 years
in the state prison.

6.  On 11 July 1972, the applicant’s unit commander notified him that
action was being initiated to eliminate him from the Army under the
provisions of section VI, Army Regulation 635-206, based on his conviction
and sentence by civil court.

7.  On 14 July 1972, the applicant consulted with legal counsel, and after
being advised of the basis of the contemplated separation action, he
completed his election of rights requesting appointed military counsel and
he elected to have his case considered by a board of officers.

8.  On 5 October 1972, a board of officers convened to consider the
applicant’s case.  The applicant's counsel was present at the proceedings.
After carefully considering all the evidence submitted and the testimony
presented, the board of officers recommended the applicant be discharged
under the provisions of
Army Regulation 635-206, by reason of conviction by civil court, and that
he receive an UD.

9.  On 26 October 1972, the separation authority approved the
recommendation of the board of officers and directed the applicant be
separated under the provisions of Army Regulation 635-206, by reason of
conviction by civil court, and that he receive an UD.  On 22 November 1972,
the applicant was discharged accordingly.  The DD Form 214 issued to the
applicant on the date of his separation confirms he completed 1 year, 3
months and 22 days of creditable active military service.

10.  There is no evidence to show that the applicant applied to the Army
Discharge Review Board for an upgrade to his discharge within the 15 year
statute of limitations of that board.

11.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for separation of enlisted personnel.  It provided, in pertinent
part, that members convicted by civil authorities could be considered for
separation.  An UD was normally considered appropriate for members
separated under this provision of the regulation.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was young and that he had personal
problems at the time he served was carefully considered.  However, this
factor is not sufficiently mitigating to warrant an upgrade of his
discharge at this late date.

2.  The evidence of record shows the applicant’s separation processing was
accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, the
character of the applicant’s discharge is commensurate with his overall
record of military service.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 November 1972.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
21 November 1975.  He failed to 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

__SK ___  __JTM___  ___RLD _  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.




                                  ____Stanley Kelley________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005170                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-15                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR635-206 . . . . .                     |
|DISCHARGE REASON        |Civil conviction                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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