RECORD OF PROCEEDINGS


      IN THE CASE OF:    .


      BOARD DATE:        21 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050017937


      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, in effect, that his records be corrected by
upgrading his discharge.

2.  The applicant states after 30 years the biggest mistake he ever made
has changed his life forever.  He was 17 years of age and was not a
responsible person at that age.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 20 July 1978.  The application submitted in this case is dated
12 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 1 April 1977, for a
period of
3 years.  He served in Germany from July 1977 to January 1978.

4.  On 17 April 1978, the applicant was convicted by a civil court of
burglary.  He was sentenced to imprisonment for a period of not less than
one year no more than 10 years.  The applicant, through his attorney,
request probation from confinement, and was granted 2 years probation.

5.  On 28 April 1978, a medical examination cleared the applicant for
separation.

6.  On 28 April 1978, a Mental Status Evaluation found the applicant
mentally responsible, able to distinguish right from wrong and adhere to
the right, and met the standard for retention.



7.  On 10 May 1978, the applicant accepted nonjudicial punishment under the
provisions of Article 15, Uniform Code of Military Justice, for being
absent without leave (AWOL) from 8 January 1978 to 15 January 1978, and
from 18 January 1978 to 25 April 1978.  His punishment was reduction to pay
grade E-1, a forfeiture of pay, extra duty, and restriction.

8.  On 10 May 1978, the applicant was notified by his commander of his
intent to recommend his discharge under the provisions of Army Regulation
635-200, Chapter 13, for conviction by civil court.  He was advised of his
rights and waiver options.

9.  On 10 May 1978, after consulting with legal counsel, the applicant
waived consideration of his case by a board of officers, waived
representation by counsel and elected not to submit a statement in his own
behalf.  He acknowledged that he understood the effects of receiving an
under other than honorable conditions characterization of service.  He also
acknowledged that he understood that he may be deprived of many or all Army
benefits and that he may be ineligible for many or all benefits
administered by the Department of Veterans Affairs, and that he may be
deprived of his rights and benefits as a Veteran under both Federal and
State law.

10.  On 17 May 1978, his unit commander recommended his discharge under the
provisions of Army Regulation 635-200, Chapter 14, for misconduct.  His
discharge was recommended because of the applicant’s conviction by civil
court.
11.  On 31 May 1978, his intermediate commander concurred with the unit
commander’s recommendation.

12.  On 28 June 1978, the appropriate separation authority approved the
applicant’s discharge with the issuance of an under other than honorable
conditions discharge.

13.  On 20 July 1978, the applicant was discharged under Army Regulation
635-200, Chapter 14, under other than honorable conditions.  His DD Form
214 (Report of Separation from Active Duty) indicates the applicant had 1
year and   3 days of active service and 106 days of lost time.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, conviction by civil authorities, and
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impractical or is unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.  The applicant’s
contention of being young and irresponsible is insufficient to grant the
relief requested.  The Board notes that the applicant was 18 years of age
at the time of his first offense.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 July 1978; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
19 July 1981.  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

__WC___  __JR  ___  ___DT __  DENY APPLICATION







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.




                                  ______William Crain_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017937                           |
|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          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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