RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 October 2005
      DOCKET NUMBER:  AR20050008808


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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), or
honorable discharge (HD).

2.  The applicant states, in effect, that he was discharged for a civilian
misdemeanor offense and that no one from the Army was sent to pick him up
during his trial.

3.  The applicant provides a Certificate of Eligibility for Loans Guaranty
Benefits (VA Form 26-8320) and Separation Documents (DD Forms 214), dated
26 June 1965, 30 August 1967, and 12 November 1969 in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on
12 November 1969.  The application submitted in this case is dated 28 May
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 initially enlisted in the Army National
Guard (ARNG) of the United States and entered active duty for training
(ACDUTRA) on
18 January 1965.  He was trained in and awarded military occupational
specialty (MOS) 941.10 (Cook), and on 26 June 1965, he was released from
ACDUTRA and returned to his ARNG unit.  The DD Form 214 he was issued for
this period of active duty service shows he completed a total of 5 months
and 9 days of active military service and held the rank of private/E-2
(PV2).

4.  On 1 February 1966, the applicant entered active duty in the Regular
Army (RA).  He was trained in and awarded MOS 64A (Light Vehicle Driver).
He continuously served until being honorably discharged, for the purpose of
immediate reenlistment on 30 August 1967.  The DD Form 214 he was issued
for this period of service shows he completed 1 year and 7 months active
military service and held the rank of private first class (PFC).
5.  On 31 August 1967, he reenlisted and began his last period of active
duty service.  His Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions), that he was promoted to specialist
four (SP4) on 13 July 1968, and that this is the highest rank he held while
serving on active duty.  It also shows that he was reduced on at least five
separate occasions, and was finally reduced to private/E-1 (PV1) on 14 July
1969.

6.  The applicant’s DA Form 20 also shows that he served in the Republic of
Vietnam (RVN) from 2 December 1967 to 22 September 1968.  Item 41 (Awards
and Decorations) shows that during his active duty tenure, he earned the
following awards:  National Defense Service Medal, Vietnam Service Medal,
Vietnam Campaign Medal with 60 Device, Army Good Conduct Medal and
1 Overseas Bar.

7.  The applicant’s record reveals a disciplinary history that includes his
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on the following four
occasions for the offense(s) indicated:  1 September 1966, for sleeping on
guard duty while under the influence of alcohol; 7 February 1967, for
leaving the barracks without an authorized pass; 29 March 1967, for
reckless driving of a military vehicle, attempting to avoid apprehension by
the military police, possession of alcoholic beverages in his truck,
transporting two German Nationals in his truck without authorization, and
for driving in a reckless manner causing a general officer to leave the
highway to avoid being struck; and 5 January 1968, for disobeying a lawful
order issued by a commissioned officer.

8.  The applicant’s record does not include a separation packet containing
the specific facts and circumstances surrounding his discharge processing.
The record does include a properly constituted DD Form 214 that shows on
12 November 1969 the applicant was separated under the provisions of
Section VI, Army Regulation 635-206, by reason of misconduct (civil court
conviction), and he received an UD.

9.  On 8 December 1981, the Army Discharge Review Board, after carefully
considering the applicant’s case, concluded that his discharge was proper
and equitable, and it voted to deny his request to upgrade his discharge.

10.  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
UD was normally considered appropriate for members separating under this
provision of the regulation.

11.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his UD should be upgraded because the
Army did not send anyone to pick him up when he was being tried for a
civilian offense has been carefully considered.  However, this factor is
not sufficiently mitigating to warrant an upgrade of his discharge at this
late date.

2.  The available evidence is void of a separation packet containing the
specific facts and circumstances concerning the events that led to the
applicant’s discharge.  However, there is a properly constituted DD Form
214 on file.  This document identifies the reason and characterization of
the discharge.  As a result, there is a presumption of Government
regularity in the discharge process.

3.  Lacking evidence to the contrary, it is presumed that all requirements
of law and regulation were met and the rights of the applicant were
protected throughout the separation process.

4.  The available evidence confirms that the applicant had an extensive
disciplinary history of military infractions prior to the civil conviction
that ultimately led to his discharge.  Further, there is no evidence to
show that his service was sufficiently meritorious to mitigate the serious
misconduct that led to his discharge.

5.  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

6.  Records show the applicant exhausted administrative remedies on this
issue when his case was reviewed on 8 December 1981.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 7 December 1984.  However, 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

___JEV _  __CVM __  ___LMB_  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 E. Vick______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050008808                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/10/                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1969/11/12                              |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |Civilian Conviction                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |ABCMR Director                          |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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