RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20060004041


      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. 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 that his undesirable discharge be upgraded.

2.  The applicant states, in effect, that since his discharge he has had
serious medical problems (two heart surgeries).  He states that the Army
accepted him in 1970 and knew of his heart condition.  He further states
that his 1970 military records clearly show that he had a heart problem and
mental health issues.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 September 1971.  The application submitted in this case is
dated 11 March 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 enlisted on 18 November 1970 for a period of 2 years.

4.  While in basic combat training, the applicant went home for Christmas
leave on 16 December 1970.  While on leave, on 10 January 1971, he was
arrested by civil authorities for grand larceny (automobile), hit and run,
and operating a motor vehicle without the owner’s consent.  On 21 May 1971,
the applicant was convicted of the above mentioned charges and sentenced to
two years of confinement.

5.  On 15 July 1971, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-206 for conviction by civil
court.

6.  The applicant requested consideration of his case by a board of
officers.  A board of officers convened on 14 September 1971 to determine
whether the applicant should be eliminated from the service under the
provisions of Army Regulation 635-206.  The board found that the applicant
was undesirable for further retention in the military service because of
conviction by civil court.  The board recommended that the applicant be
discharged from the Army because of conviction by civil court with the
issuance of an undesirable discharge.  On
24 September 1971, the separation authority approved the findings and
recommendation of the board.

7.  Accordingly, the applicant was discharged on 30 September 1971 with an
undesirable discharge under the provisions of Army Regulation 635-206 for
conviction by civil court.  He had served 1 month and 21 days of creditable
active service with 265 days of lost time due to civil confinement.

8.  A Form 507 (Enlisted Personnel Data), dated 22 July 1971, shows the
applicant’s physical profile was 111111 on 18 November 1970.

9.  There is no evidence of record which shows the applicant was diagnosed
with any mental or medical condition prior to his discharge.

10.  On 26 September 1972, the Army Discharge Review Board (ADRB) denied
the applicant's request for a general discharge.  On 1 May 1980, 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 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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

13.  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.

14.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of
Medical Fitness) provides that the basic purpose of the physical profile
serial system is to provide an index to the overall functional capacity of
an individual and is used to assist the unit commander and personnel
officer in their determination of what duty assignments the individual is
capable of performing, and if reclassification action is warranted.  Four
numerical designations (1-4) are used to reflect different levels of
functional capacity in six factors (PULHES): P-
physical capacity or stamina, U-upper extremities, L-lower extremities, H-
hearing
and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all
factors indicates that an individual is considered to possess a high level
of medical fitness and, consequently, is medically fit for any military
assignment.

15.  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.  The evidence of record does not support the applicant’s contention that
the Army accepted him in 1970 and knew of his heart condition.  Evidence of
record shows his physical profile was 111111 on 18 November 1970.

2.  Although the applicant contends that his 1970 military records clearly
show that he had a heart problem and mental health issues, there is no
evidence of record which shows that he was diagnosed with any mental or
medical condition prior to his discharge.

3.  The applicant’s brief record of service included 265 days of lost time.
 It appears he also committed serious civil offenses while in the Army.  As
a result, his record of service was not satisfactory and did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Therefore, the applicant's record of service is insufficiently meritorious
to warrant a general discharge or an honorable discharge.

4.  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.

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

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 1 May 1980.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 30 April 1983.  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

WC_____  _JR_____  _DT____  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.




                                  ____William Crain_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004041                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710930                                |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |Conviction by civil court               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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