RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            03 August 2006
      DOCKET NUMBER:   AR20060000667


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Gerald Purcell                |     |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 undesirable discharge be upgraded to
honorable.

2.  The applicant states that at the time he went absent without leave
(AWOL) he was having major problems at home.  He goes on to state that he
was serving in Vietnam when he received a letter from his wife informing
him that she was pregnant by another man.  His commander allowed him to
leave Vietnam early and when he arrived home, he found that she was 7 or 8
months pregnant and he had been gone for 11 months.  He continues by
stating that he attempted to get a divorce and the judge would not allow
it, which did something to him mentally and made him confused and angry.
He continues by stating that he started hanging out in the streets,
drinking and doing things that were wrong and ended him in prison for armed
robbery for 2 or 3 years.  He also states that a military lawyer visited
him in prison and told him that he was going to upgrade his discharge;
however, by the fourth time when he came back, the applicant states that he
had already escaped and never found out if his discharge had been upgraded.
 He concludes by stating that he feels he has paid his dues for the wrong
he did and believes that he has changed his life for the better.

3.  The applicant provides four third party character references with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 May 1973.  The application submitted in this case is dated 6
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 was born on 30 November 1947 and was inducted in Atlanta,
Georgia, on 27 October 1966.  He completed his basic combat training at
Fort Jackson, South Carolina and his advanced individual training (AIT) as
an infantry indirect fire crewman at Fort Polk, Louisiana.  Upon completion
of his AIT he was transferred to Vietnam on 10 April 1967.  He was advanced
to the pay grade of E-3 on 21 April 1967 and to the pay grade of E-4 on 10
July 1967.

4.  On 29 November 1967, nonjudicial punishment (NJP) was imposed against
him for failure to report for guard mount at the proper time and in the
proper uniform.  His punishment consisted of a forfeiture of pay.

5.  On 10 January 1968, NJP was imposed against him for failure to repair
for duty as a KP (kitchen police).  His punishment consisted of a
forfeiture of pay.

6.  He departed Vietnam on 21 March 1968 and was transferred to Fort
Benning, Georgia, and was assigned to 1st  Battalion, 58th Infantry
Regiment on 16 April 1968.

7.  On 3 May 1968, he reenlisted for a period of 6 years, assignment to
Fort Benning and a selective reenlistment bonus.

8.  On 22 August 1968, nonjudicial punishment was imposed against him for
failure to go to his place of duty.  His punishment consisted of extra duty
and restriction for 14 days.

9.  On 27 August 1968, he was convicted by a special court-martial of being
absent without leave (AWOL) from 9 June to 8 July 1968.  He was sentenced
to confinement at hard labor for 3 months, reduction to the pay grade of E-
1 and a forfeiture of pay.  However, the convening authority suspended so
much of the sentence pertaining to confinement at hard labor for 3 months
and the forfeiture of pay for 3 months, unless sooner vacated.

10.  For reasons not explained in the available records, the suspended
sentence was vacated by the convening authority on 25 September 1968 and
the applicant was placed in confinement.

11.  On 14 November 1968, he again went AWOL and remained absent until he
was arrested by civil authorities in Atlanta, Georgia, on 12 February 1969,
while attempting to rob a food store.  The applicant had at least two other
outstanding arrest warrants for armed robbery on 24 December 1968 and 18
January 1969 at the time he was arrested.

12.  On 22 April 1969, he was sentenced by civil authorities to 8 years in
the State Penitentiary for one charge of armed robbery.  On 22 October
1969, he was sentenced to 15 years (10 years consecutive and 5 years
concurrent) for one additional charge of armed robbery and one of attempted
armed robbery.  He was transported to the Reidsville State Penitentiary.

13.  His records also indicate that at some point in his confinement he was
transferred to the Milledgeville State Mental Hospital and he escaped from
that facility on 15 July 1971.  He was apprehended by civil authorities in
New York in August 1972 and was returned to Georgia in September 1972 to
serve the remainder of a 21 year sentence.

14.  On 8 March 1973, the applicant was notified that he was being
processed for discharge from the service under the provisions of Army
Regulation 635-206 due to his conviction by civil authorities.  He was
advised of his rights and was informed that he was being considered for an
undesirable discharge.

15.  The applicant waived his rights on 14 March 1973 and indicated that he
did not intend to appeal his civil conviction.

16.  The appropriate authority (a major general) approved the
recommendation for discharge on 20 April 1973 and directed that he be
furnished an Undesirable Discharge Certificate.

17.  Accordingly, he was discharged under other than honorable conditions
on 1 May 1973, under the provisions of Army Regulation 635-206 due to
conviction by civil authorities.  He had served 3 months and 1 days of his
current enlistment for a total of 1 year, 9 months and 7 days of total
active service.  He had 1,708 days of lost time due to AWOL and confinement
by military and civilian authorities.

18.  On 9 March 1975, he applied to the Army Discharge Review Board (ADRB)
requesting an upgrade of his discharge to honorable.  The ADRB determined
that his discharge was both proper and equitable and voted to deny his
request on 4 March 1976.

19.  On 24 March 1978, he again applied to the ADRB for an upgrade of his
discharge.  He asserted at that time that he believed it unfair that he had
been discharged due to a civil conviction and contended that others in
similar circumstances had their discharges upgraded within a year and he
wanted the same treatment.  The ADRB determined that the applicant’s
discharge was both proper and equitable and voted unanimously to deny his
request on 2 November 1979.

20.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 33 of the
regulation provided, in pertinent part, that members convicted by civil
authorities would be processed for separation upon completion of their
appeal of the civil conviction or immediately after they acknowledge that
they do not intend to appeal the conviction.  An undesirable discharge was
normally considered appropriate.

21.  Army Regulation 635-200, currently in effect, sets forth the basic
authority for the separation of enlisted.  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, desertion
or AWOL.  A discharge under other than honorable conditions is normally
considered appropriate.

22.  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.  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.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no violations or procedural
errors, which would tend to jeopardize his rights.

3.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

4.  The applicant’s contentions and supporting statements have been noted
by the Board.  However, given the seriousness of his offenses and his
overall record of service, they are not sufficiently mitigating to warrant
an upgrade of his discharge.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 2 November 1979.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 1 November 1982.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

_____MP   ____MF _  ____GP _  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.




                                  ____Margaret Patterson_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000667                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060803                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1973/05/01                              |
|DISCHARGE AUTHORITY     |AR635-206/ . . . . .                    |
|DISCHARGE REASON        |CIV CONV                                |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |626/A60.00                              |
|1.144.6100              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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