RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 January 2006
      DOCKET NUMBER:  AR20050008707


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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 to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, he performed his duties as a Soldier
and received excellent conduct and efficiency ratings.  He claims he
committed a civil offense that resulted in his discharge and that none of
his actions as a Soldier contributed to his UD.

3.  The applicant provides a self-authored statement and the 16 other
documents listed on his supporting documents list in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 May 1964.  The application submitted in this case is
dated 6 June 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 he enlisted in the Regular Army and
entered active duty on 29 September 1962.  He was trained in and awarded
military occupational specialty (MOS) 464.17 (Parachute Rigger), and the
highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant’s record shows that during his tenure on active duty he
earned the Expert Qualification Badge with Rifle Bar and the Parachutist
Badge.  There are no acts of valor, significant achievement, or service
warranting special recognition documented in the record.

5.  The applicant’s disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on two separate occasions, and his
conviction of violating Article 121 of the UCMJ by a Special Court-Martial
(SPCM).

6.  On 21 June 1963, the applicant accepted NJP for being absent from his
place of duty without proper authority.  His punishment for this offense
was 7 days of restriction.

7.  On 10 September 1963, pursuant to his plea, a SPCM found the applicant
guilty of violating Article 121 of the UCMJ by stealing $119.00 from
another Soldier.  The resultant sentence included confinement at hard labor
for three months, forfeiture of $55.00 per month for three months and
reduction to private/E-1 (PV1).  The convening authority approved only so
much of the sentence that provided for a forfeiture of $55.00 per month for
three months and reduction to PV1.

8.  On 18 October 1963, the applicant accepted NJP for using a false birth
date on identification (ID) card application in order to obtain an ID card.
 His punishment for this offense included a forfeiture of $19.00, reduction
to PV1, and 14 days of extra duty.

9.  On 21 February 1964, the applicant was arrested by civil authorities in
Columbus, Georgia.  He was charged with larceny, six counts of breaking and
entering an automobile.

10.  On 27 February 1964, the applicant was convicted of six counts of
breaking and entering an automobile pursuant to his plea of guilty.  He was
sentenced to confinement for not less than five years.

11.  The applicant’s unit commander notified the applicant that he was
recommending his discharge under the provisions of Army Regulation 635-206,
by reason of civil conviction and that he could receive an UD.  The unit
commander also advised the applicant of his right to a hearing before a
board of officers, or to waive those provisions and submit written
statements in his own behalf.  The applicant was also informed that
military counsel was made available to him and of his right to employ
civilian counsel at no expense to the United States Government if he so
desired.  The applicant acknowledged this notification and elected to waive
his right to a hearing before a board of officers, and he elected not to
submit statement in his own behalf.  He also acknowledged that he
understood if he received an UD, it could deprived of many or all rights as
a veteran under both Federal and State law, and that he could expect to
encounter substantial prejudice in civilian life as a result of his
discharge.

12.  On 4 April 1964, the applicant completed a statement confirming that
he did not intend to appeal his civil conviction.

13.  On 27 April 1964, the separation authority approved the applicant’s
separation under the provisions of Army Regulation 635-206, by reason of
civil conviction, and he directed the applicant receive an UD.   On 8 May
1964, the applicant was discharged accordingly.  The DD Form 214 he was
issued at the time confirms he completed a total of 1 year, 3 months and 2
days of creditable active military service, and that he accrued 129 days of
time lost.

14.  The applicant provides 11 third-party statements, which all attest to
his outstanding character, and excellent post service conduct.

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

16.  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 III 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 UD was normally considered appropriate
for members separating under this provision of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant’s separation processing
was accomplished in accordance with the applicable regulation in effect at
the time.  All requirements of law and regulation were met, and his rights
were fully protected throughout the separation process.

2.  The record further shows that in his less than 1 and 1/2 years of
service, he accepted NJP punishment on two separate occasions, and he was
convicted of stealing money from another Soldier by a SPCM, and his record
documents no acts of valor, significant achievement, or service warranting
special recognition.  As a result, it is clear his discharge accurately
reflects his overall record of undistinguished service.

3.  The applicant’s excellent post service conduct and character, as
attested in the supporting statements, was also carefully considered.
However, this factor alone is not sufficiently mitigating to support
granting the requested relief at this late date.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1964.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 7
May 1967.  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

___KLW _  ___DED_  ___QAS_  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.




            ____Kenneth L. Wright____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050008707                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/01/10                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1964/05/08                              |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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