RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 December 2005
      DOCKET NUMBER:  AR20050007377


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |Member               |
|     |Ms. Jeanette McCants              |     |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 should have an honorable discharge because he
did not do anything to the Army to deserve an undesirable discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 September 1953.  The application submitted in this case is
dated 19 April 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 military records are not available to the Board.  This
case is being considered using reconstructed records, which primarily
consist of his DD Form 214 (Report of Separation from the Armed Forces of
the United States), DA Form 20 (Soldier's Qualification Card), and service
medical records.

4.  Having prior service, the applicant enlisted on 11 September 1950 and
trained as a military policeman and laborer.

5.  The facts and circumstances surrounding the applicant's discharge are
not contained in the available records.  However, the available records
contain a message which states the applicant appeared in court on 16
February 1953 and was held for grand jury action.  A DD Form 616 (Report of
Return of Absentee) states the applicant was confined by civil authorities
from 6 February 1953 to
10 September 1953.

6.  The applicant's DD Form 214 shows he was discharged with an undesirable
discharge on 10 September 1953 under the provisions of Army Regulation 615-
366.  He had served 2 years, 4 months, and 24 days of creditable service
during this enlistment and a total of 3 years, 11 months, and 22 days for
pay purposes with 215 days of lost time.
7.  Army Regulation 615-366, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for misconduct due to
fraudulent entry, absent without leave, desertion, and conviction by civil
court.  Section IV (Conviction by Civil Court), paragraph 15a provided that
discharge authorities would discharge individuals who, during their term of
service, were convicted by a civil court for a criminal offense or adjudged
a youthful offender and sentenced to death or imprisonment for a term
exceeding one year.  The regulation also provided that an individual
discharged due to conviction by civil court or having been adjudged a
youthful offender would be furnished an undesirable discharge certificate.

8.  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.

9.  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.  It appears the applicant was separated due to a civil conviction.  In
the absence of evidence to the contrary, it must be presumed that the
applicant’s separation was administratively correct and in conformance with
applicable regulations.  Without having the discharge packet to consider,
it is presumed his characterization of service was commensurate with his
overall record of service and in accordance with the governing regulation.
As a result, there is no basis for granting the applicant's request.

2.  Records show the applicant should have discovered the alleged injustice
now under consideration on 10 September 1953; therefore, the time for the
applicant to file a request for correction of any injustice expired on 9
September 1956.   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

JH_____  _RB_____  JM______  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 Hise_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007377                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19530910                                |
|DISCHARGE AUTHORITY     |AR 615-366                              |
|DISCHARGE REASON        |Conviction by civil court               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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