RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 September 2006
      DOCKET NUMBER:  AR20060004481


      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             |
|     |Mr. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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 be upgraded.

2.  The applicant states, in effect, that he was awarded a general
discharge under other than honorable conditions.  He states that the
Veterans Administration (VA) is considering his type of discharge as
dishonorable.  He states that he "should not be denied VA benefits that are
denied to dishonorably discharged criminals."

3.  He stated that he had committed a civil offense, for which he was
incarcerated by civil authorities.  He stated that the only charge he
received by the military authorities was absent without leave (AWOL), and
he does not believe that type of charge warrants a dishonorable discharge.

4. The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 November 1974, the date of his discharge from active
duty.  The application submitted in this case is dated 20 March 2006;
however, it was received on 29 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's records show that he enlisted in the Regular Army on  
28 May 1970.  He completed basic combat training and advanced individual
training, and was awarded the military occupational specialty 11B10 (Light
Weapons Infantryman).  The highest rank he attained while serving on active
duty was Specialist/pay grade E-4.

4.  On 5 October 1971, the applicant accepted Nonjudicial Punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for failure to repair.  His punishment consisted of forfeiture of
$62.00 per month for one month, and reduction to Private First Class/pay
grade E-3 that was suspended for 30 days.

5.  On 29 November 1971, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for failure to obey a lawful order, failure to repair,
and operating a vehicle while drunk in a reckless manner.  His punishment
consisted of reduction to Private First Class/pay grade E-3, and
restriction to the company area, his place of duty, and place of worship
for 14 days.

6.  On 28 January 1972, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for AWOL.  His punishment consisted of reduction to  
Private /pay grade E-2, and forfeiture of $100.00 per month for one month.

7.  His military service records show that after returning from the
Republic of Vietnam on leave, he went AWOL on 13 April 1972, and remained
so until 5 May 1972.  On 5 May 1974, he was charged with armed robbery by
civilian authorities.

8.  On 20 November 1972, he was convicted before the 15th Judicial District
for the Parish of Lafayette, Louisiana for attempted armed robbery.  He was
sentenced to 20 years at hard labor and given credit for 534 days.

9.  On 20 May 1974, he received notification that he was being considered
for separation under the provisions of Army Regulation 635-206 for
misconduct-conviction by civil court.  He was advised of the rights
available to him and the effects of a discharge under less than honorable
conditions.

10.  On 2 August 1974, his commander recommended that he be discharged
under the provision of AR 635-206 for civil conviction.  On 24 September
1974, a board of officers convened to hear the applicant's case.  The board
found the applicant undesirable for further retention in the military and
recommended he be issued an undesirable discharge.  On 3 October 1974, the
recommendation for separation was approved by the appropriate authority.

11.  On 27 November 1974, the applicant was given an undesirable discharge
from active duty for misconduct-conviction by civil court, and he received
a reduction to Private/pay grade E-1.  He had completed 1 year, 10 months,
and 10 days of active service and accrued 964 days time lost.

12. The applicant applied twice to the Army Discharge Review Board (ADRB).
On 10 August 1978, the ADRB reviewed the applicant's record and determined
that his discharge was proper and equitable.  The ADRB noted, in effect,
that the applicant was properly discharged in accordance with paragraph
33a, Section VI of Army Regulation 635-206 (Personnel Separations-
Discharge).  The board also noted that he had received NJP on three
separate occasions while on duty in the Republic of Vietnam, had gone AWOL
twice, and had one civilian confinement for a total lost time of 964 days.
The board further noted that he had been sentenced in the state of
Louisiana to 20 years for attempted armed robbery.  On that basis the
applicant’s request for upgrade of his discharge was denied.

13.  On 27 February 1981, ADRB reviewed the applicant's record and
determined that his discharge was proper and equitable; therefore, his
request for change of the nature of his discharge was again denied.

14.  Paragraph 33a, Section VI (Conviction by Civil Court) of Army
Regulation 635-206, then in effect, states, in pertinent part, that an
individual will be considered for discharge when he has been initially
convicted by civil authorities, or action taken against him which is
tantamount to a finding of guilty, of an offense for which the maximum
penalty under the Uniform Code of Military Justice is death or confinement
in excess of 1 year.  An undesirable discharge was normally considered
appropriate.

15.  Army Regulation 635-200 (Personnel Separation), 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.

16.  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.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his discharge be upgraded.

2.  The Board concurs with the ADRB, that the applicant's repeated offenses
and the seriousness of his civil offense certainly warranted an undesirable
discharge.

3.  The applicant's discharge was processed in accordance with the
applicable regulations in effect at the time with no indication of any
error which may have affected the rights of the applicant.

4.  The applicant's ability to obtain VA Benefits is not relevant to
whether his discharge was proper and equitable.

5.  His discharge was accomplished in compliance with applicable
regulations and there is no indication of procedural errors or injustice
that would tend to jeopardize his rights.  The evidence provides sufficient
basis for an under other than honorable conditions discharge for misconduct
– conviction by civil court.  The applicant's records show that his service
was not satisfactory; therefore, he is not entitled to an honorable or
general discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 February 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
26 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

___lds___  ____am _  ___pms__  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.




                                  __________Linda D. Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004481                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060928                                |
|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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