RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 July 2006
      DOCKET NUMBER:  AR20050014826


      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             |
|     |Mrs. Phyllis M. Perkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Dennis J. Phillips            |     |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 under other than honorable conditions
discharge be upgraded to honorable.

2.  The applicant states, in effect, that his discharge should be upgraded
because he wasn't guilty of charges against him.  He further states that he
was unable to finish his three year commitment with the Army.

3.  The applicant provides no additional documentary evidence in support of
this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 December 1976, the date of his separation from active duty.
The application submitted in this case is dated 25 September 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 23 November 1973 for a
period of 3 years.  He was trained in, awarded, and served in the military
occupational specialty 31N20 (Tactical Circuit Controller).  The highest
rank he attained while serving on active duty was private first class/pay
grade E-2.

4.  The applicant's service records reveal 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 two separate occasions for the offenses indicated:  on 29
July 1974, for striking another Soldier in the face with his fist; and on 3
February 1964, for being absent without leave (AWOL) from 21 October 1974
through 28 October 1974.



5.  The applicant's Personnel Qualifications Record (DA Form 2-1) shows in
Item 21 (Lost Time) that the applicant was AWOL during the period 21
October 1974 through 27 October 1974.  This form also shows that the
applicant was held in civil confinement from 29 October 1974 through
5 November 1974 and 18 June 1975 through 21 December 1976.

6.  A DA Form 4187 (Personnel Action), dated 30 October 1974, shows the
applicant was apprehended by civil authorities on 29 October 1974 and was
taken to Killeen City Jail (Killeen, Texas) for robbery and assault.

7.  A DA Form 3975 (Military Policy Report), dated 21 March 1975, shows a
search was conducted, on 13 March 1975, prior to the applicant's placement
in a detention cell, and it was found that the applicant had in his
possession marijuana.

8.  A DA Form 3975, dated 24 March 1975, shows the applicant was stopped on
13 March 1975 by military police for questioning as a possible suspect.  It
was found that the applicant had in his possession a .38 caliber pistol.

9.  On 27 May 1975, the applicant entered a plea of guilty and was adjudged
to be guilty of aggravated robbery by the District Court of Bell County,
Texas.  He was sentenced to a term of not less than 5 nor more than 10
years of confinement at the Texas Department of Corrections.

10.  On 17 June 1975, the applicant was notified in a letter from his unit
commander that his separation by reason of civil conviction was
contemplated.  In this letter, the unit commander also informed the
applicant of the rights available to him.

11.  On 17 June 1975, the applicant consulted with legal counsel, was
advised of his rights available to him, and requested consideration by a
board of officers.  In addition, he requested a personal appearance before
a board of officers, elected not to submit a statement in his own behalf,
and requested representation by military counsel.

12.  On 17 June 1975, the applicant’s unit commander submitted a
recommendation for the applicant’s discharge under the provisions of
paragraph 33a of Army Regulation 635-206 (Personnel Separations), by reason
of civil conviction.  The unit commander cited the applicant’s attitude
problems and his civil conviction as the basis for the discharge
recommendation.

13.  On 8 September 1975, a board of officers convened and found that the
applicant was undesirable for further retention in the military because of
civilian conviction.  The board further recommended that the applicant be
separated with an Undesirable Discharge Certificate.

14.  On 29 October 1976, the lieutenant colonel, Chief of Separations
Branch at the Military Personnel Center (Alexandria, VA) approved the
recommendation for discharge under the provision of section VI, Army
Regulation 635-206 and directed that the applicant be furnished an
Undesirable Discharge Certificate.

15.  The applicant was discharged under other than honorable conditions on
21 December 1976 under the provision of section VI of Army Regulation
635-206, by reason of civil conviction.  He had served 1 year, 6 months,
and 11 days on active service and had over 500 days of lost time.

16. There is no evidence that the applicant applied for the Army Discharge
Review Board for upgrade of his discharge within its 15-year statue of
limitations.

17.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for misconduct
(fraudulent entry, conviction by civil court, and absence without leave or
desertion).  That regulation provided, in pertinent part, for the
elimination of enlisted personnel for misconduct when they were initially
convicted by civil authorities, or action taken against them which is
tantamount to a finding of guilty, for an offense for which the maximum
penalty under the Uniform Code of Military Justice is death or confinement
in excess of 1 year.

18.  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.

19.  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.  The applicant contends that his under other than honorable conditions
discharge should be upgraded.

2.  Evidence of record shows the applicant pled guilty to charges brought
against him by the State of Texas for aggravated robbery with a deadly
weapon and was sentenced to confinement at the Texas Department of
Corrections for a term of not less than 5 nor more than 10 years.

3.  Based on the nature of the applicant's indiscipline and the fact that
he was convicted of and sentenced to a term of confinement in the Texas
Department of Corrections, the applicant's service clearly does not meet
the standards of acceptable conduct and performance of duty for Army
personnel.  This misconduct also renders his service unsatisfactory.
Therefore, he is not entitled to a general or an honorable discharge.

4.  Evidence of record confirms that all requirements of law and regulation
were met and the applicant's rights were fully protected throughout the
separation process.  The record further shows the applicant's discharge
accurately reflects his overall record of service.  In the absence of
evidence which shows that discharge processing was in error or otherwise
improper, there is no basis to upgrade his discharge.

5. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 December 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 20 December 1979.  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

__MJF__  __ENA___  _DJP___  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.




                                     __Eric N. Andersen___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014826                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/07/06                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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