RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20060001466


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Peguine Taylor                |     |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 discharge under other than honorable
conditions be upgraded to a general discharge.

2.  The applicant states, in effect, that the offenses (robbery and murder)
considered by the military for his discharge were incorrect.  He contends
that he was convicted of voluntary manslaughter and his discharge should be
upgraded.

3.  The applicant provides a Notification of Separation, dated 31 January
1977.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 11 October 1977.  The application submitted in this case is
dated 25 January 2006.

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 inducted on 8 April 1971.  He served as a supply
clerk and was released from active duty on 29 April 1972.  He enlisted on
14 March 1975 for a period of 4 years.

4.  On 25 September 1975, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a reduction
to E-2 (suspended), a forfeiture of pay, and extra duty.

5.  On 4 December 1975, nonjudicial punishment was imposed against the
applicant for disobeying a lawful order and using disrespectful language
toward a noncommissioned officer.  His punishment consisted of a reduction
to E-2, a forfeiture of pay, and extra duty (suspended).

6.  On 17 February 1976, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 9 February 1976 to
     10 February 1976.  His punishment consisted of a forfeiture of pay and
extra duty.
7.  On 26 February 1976, the applicant was apprehended by civil authorities
pending disposition of charges.  On 27 February 1976, he was charged with
murder and released on bond.  On 11 March 1976, the applicant was
apprehended and charged with first degree murder.  He was convicted of
voluntary manslaughter on 10 May 1976 and sentenced to 7 years.

8.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, the applicant provided a
Notification of Separation, dated 31 January 1977, which shows he was
notified of his pending separation under the provisions of Army Regulation
635-206 due to misconduct (civil conviction) for robbery and murder.  His
Army Discharge Review Board (ADRB) Proceedings state that on 18 February
1977 the company commander initiated action to separate the applicant under
the provisions of Army Regulation 635-206, for civil conviction.  On 19 May
1977, the applicant requested that his case be considered by a board of
officers.  On 5 August 1977, the board of officers recommended that he be
discharged under other than honorable conditions.  On 30 August 1977, the
separation authority approved the recommendation.

9.  The applicant was discharged with a discharge under other than
honorable conditions on 11 October 1977 under the provisions of Army
Regulation 635-206, for misconduct due to conviction by civil court.  He
had served a total of 3 years and 17 days of creditable active service with
217 days of lost time due to civil confinement and AWOL.

10.  On 8 January 1980, the ADRB denied the applicant’s request for a
general discharge.  On 8 March 1982, the ADRB denied the applicant’s
request for an honorable discharge.

11.  Army Regulation 635-206, in effect at that time, set forth the basic
authority for the separation of enlisted personnel for misconduct.  The
regulation provided, in pertinent part, for the separation of personnel for
conviction by civil court.  An undesirable discharge was normally
considered appropriate.

12.  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.

13.  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 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 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.  Although the Notification of Separation, dated 31 January 1977,
incorrectly shows the applicant was convicted of robbery and murder, his
military records correctly show he was convicted of voluntary manslaughter
on 10 May 1976 and sentenced to 7 years.

2.  The applicant’s record of service included 3 nonjudicial punishments
and
217 days of lost time.  He also committed a serious civil offense while in
the Army.  As a result, his record of service was not satisfactory.
Therefore, the applicant's record of service is insufficiently meritorious
to warrant a general discharge.

3.  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.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 8 March 1982.  As
a result, the time for the applicant to file a request for correction of
any injustice to this Board expired on 7 March 1985.  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 file in this case.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

CG_____  _JG_____  _PT_____  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.


                                  ___Curtis Greenway____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001466                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19771011                                |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |Misconduct due to conviction by civil   |
|                        |court                                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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