RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 January 2007
      DOCKET NUMBER:  AR20060007771


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Roland 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, in effect, that his undesirable discharge (UD),
characterized as under other than honorable conditions (UOTHC), be upgraded
to an honorable discharge.

2.  The applicant states, in effect, that it has been 33 years since his
discharge from the Army, and he feels he served his country honorably, and
did his time for what he was asked to do.  The actions that transpired,
during that time, are well in the past and he now feels that he had paid
the price for what he did.  He now asks for only one thing which is for his
country to upgrade his UOTHC to honorable.

3.  The applicant provides a copy of his two DD Forms 214 (Armed Forces of
the United States Report of Transfer or Discharge, dated 20 October 1970
and 22 May 1973, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 May 1973, the date of his discharge.  The application
submitted in this case is dated 24 May 2006 but was received on 5 June
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 military records show he entered active duty on 20
February 1970.  The applicant successfully completed basic combat training
and advanced individual training at Fort Polk, Louisiana.  On completion of
his OSUT (one station unit training), he was awarded the military
occupational specialty (MOS), 64A, Light Vehicle Driver.  He was promoted
to private first class (PFC/E-3) on 12 July 1970.



4.  The applicant continued to serve until he was honorably discharge on
20 October 1970, for the purpose of immediate reenlistment.  He reenlisted
on 21 October 1970.  He was promoted to pay grade E-4 on 15 November 1970.
He served in Vietnam from 10 July 1970 to 6 July 1971.

5.  Between 5 October 1970 and 18 November 1971, he received nonjudicial
punishment on three occasions under Article 15, Uniform Code of Military
Justice (UCMJ), for discharging a service weapon in the guard tower, for
failure to obey a lawful order from a superior commissioned officer, for
failing to go to his appointed place of duty, and for being absent without
leave (AWOL) on two occasions.  His punishments consisted of a reduction to
pay grade E-3, forfeitures of pay, and restriction and extra duties.

6.  On 9 November 1971, the applicant was arrested for fraudulent use of a
credit card.  His disposition consisted of 30 days in confinement.

7.  On 1 December 1972, the applicant was indicted for second degree
murder, in El Paso County, Canon City, Colorado.  He was sentence to from
12 ½ years to no more than 25 years in the state penitentiary.

8.  On 3 April 1973, the applicant's commander recommended that the
applicant be separated from the service, under the provisions of Army
Regulation 635-206, for misconduct, with an UD.  He based his
recommendation on the applicant's civil court conviction.  After consulting
with counsel, he waived his rights and elected not to appeal his civil
court conviction.

9.  On 1 May 1973, the approval authority directed that the applicant be
separated and issued an UD and reduced to the lowest enlisted grade.  The
applicant was discharged on 22 May 1973, under the provisions of Army
Regulation 635-206, due to his civil court conviction.  He had a total of 2
years,   7 months, and 18 days of creditable service and had 210 days of
lost time due to AWOL and confinement.

10.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an 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.  Paragraph 33 of the
regulation provided, in pertinent part, that members convicted by civil
authorities would be considered for separation.  An undesirable discharge
was normally considered appropriate.
12.  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.

13.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was arrested for fraudulent use of a
credit card and was indicted for second degree murder by a civilian court.
He was sentenced to from 12 1/2 years to no more than 25 years in the state
penitentiary, for this act.

2.  Based on this misconduct, the applicant was discharged for his civil
court conviction under the provisions of Army Regulation 635-206.

3.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no procedural errors that would
tend to jeopardize his rights.

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

5.  The evidence of record clearly shows that it has been over 33 years
since he received his UD.  There is no evidence in the applicant's records,
and the applicant has provided no evidence, to show that he applied for an
upgrade of his discharge to the ADRB within that board's 15-year statute of
limitations.  In addition, the Army does not have and it has never had a
policy for the automatic upgrade of less than honorable discharges based on
the passage of time.




6.  The applicant's contention that he served honorably and that he did his
time for what he did was considered; however, serving time related to the
sentence of a civil court is not sufficiently mitigating to warrant an
upgrade of his discharge to honorable.

7.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 May 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 21 May 1976.  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

___J____  __WDP__  __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.




                                  _____John T. Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007771                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070117                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19730522                                |
|DISCHARGE AUTHORITY     |AR .635-206                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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