RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 October 2006
      DOCKET NUMBER:  AR20060002689


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Scott W. Faught               |     |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 an upgrade of his discharge.

2.  The applicant states, in effect, that his discharge is inequitable
because it was based on one isolated incident in 10 years of service with
no other adverse action against him.  The applicant further states, that he
joined the Army on
9 August 1972 for 6 years and while he was in the service, he was a Platoon
Leader, an Acting Drill Sergeant, a Tool Room Keeper, and acting Supply
Sergeant.  The highest grade he attained was pay grade E-5.  He served two
years in United States Marine Corps and 2 years in a non active Reserve
unit.  He further states, that, on 17 October 1979, he had a breakdown and
tried to commit suicide, he was hospitalized for a few days, he was having
family problems and he was arrested for arson.  He pleaded guilty to a
crime that he did not commit, because his wife was pregnant and could not
bear his child being born in prison.  He was not given a chance to tell his
side of the story.

3.  The applicant provides a self-authored letter in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 20 February 1981, the date he was separated
from active duty.  The application submitted in this case is dated 12
February 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’s record shows that he reenlisted in the Regular Army on
9 May 1978, after 7 years, 5 months and 8 days of prior inactive and active
military service.  His military occupational specialty (MOS) was 12B30 and
the highest rank he attained while serving on active duty was pay grade E-
5.

4.  On 1 March 1979, the applicant received a Letter of Reprimand for
dereliction of assigned duty.

5.  On 23 November 1979, the applicant was admitted to Silas B. Hays Army
Hospital, Fort Ord, California for an overdose of aspirin.  The
circumstances surrounding the incident are missing from his file.

6.  On 14 January 1980, court-martial charges were preferred against the
applicant for being AWOL from 15 to 23 October 1979, from 24 to 30 October
1979 and from 5 to 27 November 1979.  There is no evidence that he was
punished for the offenses.

7.  On 7 December 1979, the applicant was again reported as AWOL.

8.  On 15 February 1980, while in AWOL status the applicant was arrested by
civilian authorities for arson and placed in pre-trial confinement.

9.  On 20 June 1980, the applicant pleaded guilty of felony arson by the
Municipal Court of Santa Cruz County, California.  He was sentence to 2
years in civil confinement.

10.  On 24 July 1980, the unit commander notified the applicant that he was
being recommended for discharge under the provisions of Army Regulation 635-
200, chapter 14, because of his conviction by civil court and that since an
undesirable discharge may be issued, the unit commander informed him of his
rights and privileges under law.

11.  On 18 September 1980, the applicant acknowledged that he had been
advised by legal counsel of the basis for the contemplated separation
action and the rights available to him.  The applicant requested
consideration and representation by military counsel of his case by a board
of officers.

12.  On 11 December 1980, a board of officers convened to determine if the
applicant should be discharged from the United States Army under the
provisions of Army Regulation 635-200, Chapter 14-12a, before the
expiration of his term of service.  The board of officers found the
applicant undesirable for further retention in the military service because
of his conviction by civil court and recommended that the applicant be
discharged from service because of misconduct with the issuance of an Under
Other Than Honorable Conditions Discharge Certificate.

13.  On 29 December 1980, the appropriate authority approved the
recommendation, reduced the applicant to the lowest enlistment grade and
directed the issuance of a UOTHC.  On 20 February 1981, the applicant was
discharged in pay grade E-1 under the provisions of Army Regulations 635-
200, chapter14, for misconduct-conviction by civil court, with an UOTHC
discharge.  He had completed a total of 2 years, 5 months, and 18 days of
creditable active service during this period of service.  The applicant was
released from civil confinement in April 1981.

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

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant were carefully considered and found to
have insufficient merit in this case.

2.  Evidence of record shows that on 20 June 1980, the applicant pleaded
guilty to felony arson and was sentence to 2 years in civil confinement.
The evidence of record also shows that he had an extensive disciplinary
history of military infractions before being convicted in civil court.

3.  Therefore, after carefully evaluating the evidence submitted by the
applicant and the evidence of record in this case, it is determined that
the applicant’s discharge processing was conducted in accordance with law
and regulations applicable at the time and that the character of his
service is commensurate with his overall record of military service.  The
evidence of record confirms that all requirements of law and regulation
were met and the rights of the applicant were fully protected throughout
the separation process.  Therefore, given the circumstances in this case
and his overall record of service, there is insufficient evidence to
support his request.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 February 1981, therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
19 February 1984.  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

___JBG__  __MJF __  __SWF  _  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.




                                          James B. Gunlicks___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/10/05                              |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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