RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 October 2006
      DOCKET NUMBER:  AR20060004253


      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. Kenneth Wright                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Ms. Sherry Stone                  |     |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 he wants his discharge changed to
be eligible for Department of Veterans Affairs (DVA) benefits.  He states
that he was a young husband with two children and that his daughter was
very sick.  When he asked the Army for help they told him that he had not
been in the Army long enough to warrant the help his daughter needed.  He
further states that he tried to get a loan; however, he could not get a co-
signer.  He claims that he committed a few burglaries to get his daughter
in the hospital and he went to jail. He goes on to state that he spent ten
years of his life behind bars because of his love for a baby girl.  He
points out that since his release in 1979 he has not been involved in any
criminal activity.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 June 1972.  The application submitted in this case is dated
16 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 was born on 30 January 1951.  He enlisted on 25 March
1971 for a period of 3 years.  He successfully completed basic combat
training.  While in advanced individual training, on 9 June 1971,
nonjudicial punishment was imposed against the applicant for being absent
without leave (AWOL) from
31 May 1971 to 8 June 1971.  His punishment consisted of a forfeiture of
pay, restriction and extra duty.

4.  The applicant went AWOL on 6 July 1971.

5.  On 7 October 1971, the applicant was convicted by civilian authorities
of statutory burglary and was sentenced to serve 2 years.

6.  On 19 May 1972, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-206 for conviction by civil
court.  On
24 May 1972, he waived consideration of his case by a board of officers, he
waived representation by counsel, and he elected not to submit a statement
on his own behalf.  He indicated that he did not wish to appeal his civil
conviction.  He also acknowledged that he might expect to encounter
substantial prejudice in civilian life in the event a discharge under
conditions other than honorable were issued, that he might be ineligible
for many or all benefits as a veteran under both Federal and State laws,
and that he might expect to encounter substantial prejudice in civilian
life.

7.  On 30 May 1972, the applicant’s unit commander recommended he be
separated from the service under the provisions of Army Regulation 635-206
for conviction by civil court.

8.  On 6 June 1972, the separation authority approved the recommendation
for discharge and directed the issuance of an undesirable discharge.

9.  Accordingly, the applicant was discharged on 21 June 1972 with an
undesirable discharge under the provisions of Army Regulation 635-206 for
conviction by civil court.  He had served 3 months and 7 days of creditable
active service with 360 days of lost time due to AWOL and civil
confinement.

10.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

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 3-7a, 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 3-7b, 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.  Age is not a sufficiently mitigating factor.  The applicant was 20
years old when he enlisted and he successfully completed basic combat
training.

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

3.  Good post-service conduct alone is not a basis for upgrading a
discharge.

4.  The applicant’s record of service included one nonjudicial punishment
and 360 days of lost time.  It appears he also committed a serious civil
offense 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.

5.  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.

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

7.  Records show the applicant should have discovered the alleged injustice
now under consideration on 21 June 1972; therefore, the time for the
applicant to file a request for correction of any injustice expired on 20
June 1975.  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

KW____  __TR_____  _SS____  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.




                                  ____Kenneth Wright_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004253                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061003                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720621                                |
|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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