RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20050017602


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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 honorable or general.

2.  The applicant states that he was locked-up while on leave and never
given the opportunity to fulfill his obligation.  While on leave from the
military, he got locked-up for breaking in; however, he was present and
found guilty and did 4 years.  He was never given the opportunity to return
to the service; therefore, he was given an other than honorable discharge.
He had no way or knowledge of how to correct the discharge.

3.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 January 1966, the date of his discharge from active duty.
The application submitted in this case is dated 23 November 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 military records show that he enlisted in the Regular
Army for 3 years, as a private, pay grade E-1, on 13 August 1963.  He
completed basic training and was assigned military occupational specialty
111.07, rifleman.  He was advanced to pay grade E-2 on 13 December 1963.

4.  On 14 April 1964, he was convicted by a special court-martial of
stealing one radio and one camera, the property of another soldier, on or
about 4 April 1964.  His sentence was confinement at hard labor for 4
months and reduction to the pay grade of E-1.  The sentence was approved on
the same day.

5.  On 5 May 1964, the unexecuted portion of the sentence to confinement at
hard labor to 4 months was suspended for 3 months, at which time, unless
the suspension was sooner vacated, the unexecuted portion of the sentence
would be remitted without further action.

6.  On 5 October 1964, he was apprehended and confined by civil authorities
and held for trial for attempted larceny.  On 2 December 1964, he was
tried, convicted, and sentenced to 4 years confinement.

7.  His record contain a FC Form 1409 (Record of Lost Time), dated
13 December 1965, that shows he was absent without leave (AWOL) from
5 September through 7 September 1964; AWOL from 14 April through 4 May
1964, due to confinement; AWOL from 15 September through 4 October 1964;and
AWOL from 5 October 1964 through 13 December 1965 due to confinement by
civilian authorities.

8.  On 13 December 1965, the applicant's commander recommended that the
applicant be eliminated from the service under the provisions of Army
Regulation 635-206.  The commander stated that the applicant had been
convicted of attempted burglary in Criminal Court, Baltimore, Maryland, on
20 November 1964.  The applicant submitted an appeal to the Court of
Appeals of Maryland on 30 November 1964.  The conviction for attempted
robbery was affirmed on appeal on 26 October 1965.  The commander
recommended a UD.

9.  On 17 December 1965, the appropriate separation authority approved the
discharge under the provisions of Army Regulation 635-206, and directed the
issuance of a UD Certificate.

10.  He was separated on 25 January 1966, in pay grade E-1, under the
provisions of Army Regulation 635-206, conviction by a civil court during
current term of active military service.  His character of service was
shown as under other than honorable conditions and he was issued an UD
certificate.  He was credited with 1 year net service and 523 days lost
time.

11.  There is no evidence of record that the applicant applied for a
discharge upgrade to the Army Discharge Review Board within it's 15-year
statute of limitations.

12.  Army Regulation 635-206, then in effect, provided, in pertinent part,
that an enlisted member, who was convicted by a civilian court of an
offense for which the authorized punishment under the Uniformed Code of
Military Justice included confinement of 1 year or more, was to be
considered for elimination.  The requirement for a board of officers could
be waived by the separation authority provided the individual concerned was
physically in civil custody at the time.  When such separation was
warranted a UD was considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor.  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,
or is otherwise so meritorious that any other characterization would be
inappropriate.

14.  Army Regulation 635-200, paragraph 3-7, also 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.  In view of the circumstances in this case, the applicant is not
entitled to an upgrade of his discharge.  He has not shown error,
injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions have been noted; however, they do not
sufficiently support his request and do not serve as mitigation in his
case.  The applicant was recommended for discharge from the Army by reason
of conviction by civil authorities and the appropriate separation authority
approved the recommendation.

3.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with applicable regulations and that the
type of discharge directed and the reasons therefore were appropriate
considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 January 1966, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 24 January 1969.  However,
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.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SLP___  __RML__  _JGH____  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.




                                  ____Shirley L. Powell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017602                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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