RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050017729


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Crain                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. David Tucker                  |     |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 records be corrected by upgrading his
bad conduct discharge to general, paying him lost wages for the 89 days of
lost time from 3 January 1963 to 1 April 1963 while he was confined by
civil authorities and by showing he was qualified with the rifle and
attended jump school and parachute rigger school.

2.  The applicant states that his general court-marital was too harsh, that
a summary or special court-martial would have been more appropriate.  He
also states that his DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) does not show his qualification with the rifle,
or his parachute course and the Rigger School at Fort Lee, Virginia.

3.  The applicant provides a copy of his DD Form 214 and a character
reference letter from a friend, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 25 January 1964.  The application submitted in this case is
dated 8 December 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 11 July 1961, for a
period of
3 years.  He successfully completed basic combat and individual training at
Fort Jackson, South Carolina.  His DA Form 24 (Service Record) shows he
qualified with the M-1 Rifle, and was awarded the Parachute Badge.
Documents show he was assigned to Fort Lee, Virginia, for parachute packing
maintenance and air drop school, but was relieved from the school due to
academic difficulties.




4.  On 3 January 1963, while stationed at Fort Benning, Georgia, the
applicant went absent without leave (AWOL).  While in an AWOL status he was
arrested by civil authorities for larceny.  The charges against him were
dismissed and he was returned to military control on 2 April 1963.  On 3
April 1963 the applicant went AWOL again, and was apprehended by civil
authorities and returned to military control on 15 August 1963.

5.  On 13 September 1963, the applicant was convicted, pursuant to his
pleas, by a general court-martial of being absent without leave (AWOL) from
3 January 1963 to 2 April 1963, and from 3 April 1963 to 15 August 1963.
He was sentenced to a bad conduct discharge, forfeiture of all pay and
allowances, confinement at hard labor for one year, and reduction to the
lowest enlisted grade.

6.  The findings and sentence were approved on 1 October 1963, and affirmed
by the United States Army Board of Review, Office of The Judge Advocate
General, on 22 November 1963.

7.  General Court-Martial Order 16, Headquarters, Fort Leavenworth, Kansas,
dated 8 January 1964, directed the execution of the bad conduct discharge,
forfeiture of all pay and allowances, confinement at hard labor for one
year, and reduction to the lowest enlisted grade.

8.  On 16 January 1964, the applicant requested restoration to duty so he
could earn a discharge under honorable conditions.  He acknowledged that he
understood that restoration may be subject to probation, and acknowledged
that he understood the consequences of violating probation.

9.  On 20 January 1964, a medical examination cleared the applicant for
discharge.

10.  On 25 March 1964, the Army Clemency and Parole Board disapproved the
applicant's request for restoration to duty.  The Board granted the
applicant clemency by remitting that portion of his sentence to confinement
in excess of
9 months.

11.  On 11 July 1961, the applicant was discharged under the provisions of
Army Regulation 635-204, with an under other than honorable conditions
discharge.
His DD Form 214 indicates he had 1 year, 5 months and 19 days of creditable
service and 391 days of lost time.



12.  Army Regulation 635-204, in effect at the time, provided in pertinent
part, that enlisted personnel would be discharged with a bad conduct
discharge pursuant to an approved sentence of a general or special court-
martial imposing a bad conduct discharge.

13.  Department of Defense Financial Management Regulation states in
pertinent part, that confinement by military or civilian authorities for
more than one day in connection with a trial, whether before, during or
after the trial is not creditable service for pay purposes.

14.  The applicant provides a letter of support from a friend who states
that he has known the applicant for 2 years, and that they have become good
friends, that the applicant is the type of man that one can learn a great
deal from.  He feels that the applicant has everything it takes to make a
good Soldier.  He feels the Army mistreated the applicant by not getting
him out of jail, by giving him a general court-martial instead of a summary
or special court-martial, and for having counsel who appeared to not do the
best job for the applicant.  He asks that the applicant's discharge be
changed to recognize his good time served.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant qualified with the M1 Rifle, and was
awarded the Parachute Badge, and the applicant's records should be
corrected to reflect this change.

2.  There is no evidence in the available records nor did the applicant
provide documentation to support his contention that he completed parachute
rigger school, therefore there is no justification for changing his records
in this regard.

3.  The applicant's separation was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.  The type of discharge directed and the
reasons therefore were appropriate considering the facts of the case.

4.  The Board notes that the applicant's DD Form 214 shows his character of
discharge as "under other than honorable conditions" instead of a bad
conduct discharge.  This error by the Army in completing the DD Form 214
effectively worked to upgrade the applicant's discharge from a punitive
discharge (BCD) to an administrative discharge (UOTHC).


5.  The applicant's request to be paid for his 89 days of lost time for the
time he was confined by civil authorities is without merit.  Soldiers who
are confined by civil authorities are not issued pay for the time they are
confined.  Confinement is not creditable time for pay and allowances.

6.. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 January 1964; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
24 January 1976.  The applicant did not file within the 3-year statute of
limitations; however, based on the available evidence, it would be in the
interest of justice to excuse failure to timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__WC___  ___JR___  __DT ___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing the applicant
was qualified with the M-1 Rifle and that he was awarded the Parachute
Badge.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
upgrading his discharge, awarding pay for 89 days of lost time, or showing
completion of parachute rigger school.




                                  ______William Crain________
                                            CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20050017729                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.07                                  |
|2.                      |110.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]