RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060002724


      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             |
|     |Mrs. Phyllis M. Perkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. Venable             |     |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 under other than honorable conditions
discharge be upgraded to general (under honorable conditions).

2.  The applicant states that he was young and made a big mistake while
serving in the military.  The applicant contends that he served time in a
civilian jail for the mistakes he made.

3.  The applicant further states that he was "wronged" by the Army by not
having legal representation in civil court and by being discharged without
cause.

4.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 August 1968, the date of his separation from active duty.
The application submitted in this case is dated 6 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 service personnel records show he enlisted in the
Regular Army on 26 June 1967, at the age of 17 with parental consent, for a
period of three years.  He was trained in, awarded, and served in military
occupational specialty (MOS) 76A10 (Supplyman) and the highest rank he
attained while serving on active duty was private/paygrade E-2.

4.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
two separate occasions for the offenses indicated: on 11 July 1967, for
being absent without leave (AWOL) during the period 8 July 1967 through 9
July 1967; and on 18 September 1967, for being AWOL during the period 5
September 1967 through 17 September 1967.
5.  On 25 January 1968, a special court-martial convicted the applicant of
being AWOL from on or about 25 September 1967 through on or about 17
October 1967 and from on or about 2 November 1967 through on or about 23
December 1967.  The resultant sentence included confinement at hard labor
for four months, forfeiture of $40.00 per month for four months, and
reduction to the rank of private/pay grade E-1.

6.  On 9 April 1968, the applicant entered a plea of guilty and was
adjudged to be guilty of forgery and uttering a worthless check by the
Superior Court of Catawba County, North Carolina.  The applicant was
sentenced to a term of not less than 5 nor more than 7 years of confinement
at the North Carolina Department of Corrections.

7.  On 27 June 1968, the applicant was notified in a letter from his unit
commander that his separation by reason of civil conviction was
contemplated.  In this letter, the unit commander also informed the
applicant of the rights available to him.

8.  On 11 July 1968, the applicant waived his rights for representation by
military counsel, elected not to submit a statement in his own behalf, and
elected not to appeal his conviction.

9.  On 18 July 1968, the applicant's unit commander submitted a
recommendation for the applicant's discharge under the provisions of
section VI of Army Regulation 635-206 (Personnel Separations), by reason of
conviction by civil court.  The unit commander further recommended that the
applicant be discharged in absentia by reason of confinement in the North
Carolina prison system.

10.  The unit commander cited the applicant's conviction by the Catawba
County (North Carolina) Superior Court as the basis for the discharge
recommendation.

11.  On 8 August, the separation authority directed that the applicant be
discharged under the provision of Army Regulation 635-206, by reason of
civil conviction, and directed that the applicant receive an undesirable
discharge.  On 22 August, 1968 the applicant was discharged accordingly.







12.  The separation document (DD Form 214) issued to the applicant upon his
separation shows that he completed a total of 3 months and 13 days of
creditable active military service and that he had accrued over 300 days of
lost time due to AWOL.

13.  On 7 June 1977, the Army Discharge Review Board denied the applicant's
petition to upgrade his discharge.

14.  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.

15.  Army Regulation 635-206 (Personnel Separations), in effect at that
time, set forth the basic authority for the separation of enlisted
personnel.  Paragraph 37 of the regulation provided, in pertinent part, the
convening authority is authorized to order discharge or direct retention in
the military service when disposition of an individual has been made by a
domestic court of the US or its territorial possessions.  An undesirable
discharge was normally considered appropriate.

16.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

17.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions
discharge should be upgraded because he was young and had made a mistake
during his military service.

2.  Records show that the applicant was only 17 years of age at the time of
his offenses.  However, there is no evidence that indicates that the
applicant was any less mature than other soldiers of the same age who
successfully completed military service.

3.  Evidence of record shows the applicant pled guilty to charges brought
against him by the State of North Carolina for forgery and uttering
worthless checks and was sentenced to confinement at the North Carolina
Department of Corrections for a term of not less than 5 nor more than 7
years.

4.  Based on the nature of the applicant's indiscipline and the fact that
he was convicted of and sentenced to a term of confinement in the North
Carolina Department of Corrections, the applicant's service clearly does
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  This misconduct also renders his service unsatisfactory.
Therefore, he is not entitled to a general or an honorable discharge.

5.  Evidence of record confirms that all requirements of law and regulation
were
met and the applicant's rights were fully protected throughout the
separation process.  The record further shows the applicant's discharge
accurately reflects his overall record of service.  In the absence of
evidence which shows that discharge processing was in error or otherwise
improper, there is no basis to upgrade his discharge.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 7 June 1977.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 6 June 1980.  However, 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

_PHM___  __DRG__  _RSV___  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.




                                     _Patrick H. McGann, Jr.
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002724                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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