RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 March 2007
      DOCKET NUMBER:  AR20060010148


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Mr. Rodney E. Barber              |     |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, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, he has been a good citizen since his
discharge.

3.  The applicant provides the following documents in support of his
application:  Third-Party Statement-Sister; Doctor's Statement; and Mobile
County Sheriff's Office Police Records Check.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that  occurred on 20 January 1977, the date of his discharge.  The
application submitted in this case is dated 14 July 2007.

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 record shows that he enlisted in the Regular Army and
entered active duty on 6 November 1973.  He was trained in, awarded, and
served in military occupational specialty (MOS) 11B (Infantryman), and the
highest rank he attained while serving on active duty was specialist four
(SP4).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
during his active duty tenure, he earned the Expert Marksmanship
Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification
Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with
Grenade Launcher Bar.  His record documents no acts of valor, significant
achievement, or service warranting special recognition.  Item 21 (Time
Lost) shows he accrued 83 days of time lost due to two period of civil
confinement and one period of being absent without leave (AWOL).

5.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on three separate occasions.
6.  On 6 June 1975, the applicant accepted NJP for being derelict in the
performance of his duties by sleeping on guard duty.  On 13 November 1975,
he accepted NJP for being derelict in the performance of his duties by
sleeping on guard duty, and on 7 June 1976, he accepted NJP for failing to
go to his place of duty at the prescribed time.  His punishment for these
offenses included a reduction to private first class (PFC).

7.  On 22 March 1976, the applicant was convicted of armed robbery in the
Circuit Court, Marshall County, State of Mississippi, and sentenced to
serve three years in the State Penitentiary.

8.  On 12 May 1976, the applicant was advised that he was being recommended
for separation for misconduct based on his civil conviction of 22 March
1976, for armed robbery.

9.  On 7 September 1976, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation and of the rights
available to him.  Subsequent to this counseling, the applicant requested
his case be considered by a board of officers, personal appearance before a
board of officers, and representation by counsel.

10.  On 5 October 1976, a board of officers convened at Fort Hood, Texas,
to consider the applicant's case, with the applicant and his counsel
present.  After hearing all testimony and considering all the evidence
presented, the board of officers found the applicant was undesirable for
further retention in the military service because of frequent incidents of
a discreditable nature with civil and military authorities, and it
recommended he be discharged based on his civil conviction and that he
receive an undesirable discharge (UD), which was, in effect, an UOTHC
discharge under standards established subsequent to the completion of the
board of officers but prior to the applicant's discharge.

11.  On 8 November 1976, the separation authority approved the applicant's
discharge under the provisions of Army Regulation 635-206, and directed the
applicant receive an UD, which became an UOTHC discharge under standards
subsequently established prior to the applicant's discharge, and that he be
reduced to the lowest enlisted grade.  On 20 January 1977, the applicant
was discharged accordingly.  The separation document (DD Form 214) he was
issued at this time shows he was separated under the provisions of Army
Regulation 635-206, and that he was issued an UOTHC discharge.  It also
shows that at the time of his discharge, he had completed 2 years, 11
months, and 23 days of creditable active military service and had accrued
84 days of time lost due to AWOL and civil confinement.

12.  The applicant provides a doctor's statement that indicates he is being
treated for a myriad of medical problems, the foremost of which is his end
stage liver disease.  It further indicates the applicant's condition is far
enough advanced that he requires constant care, and at this point he would
benefit greatly from Hospice care.  He also provides a statement from his
sister in which she requests the applicant's case be expedited due to his
medical condition.

13.  The applicant also provides a records check from the Mobile County's
Sheriff's Office, which shows the applicant was booked for public
intoxication on 6 June 1987 and for driving under the influence on 4
December 1986.

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

15.  Army Regulation 635-206, in effect at the time, provided the authority
for the administrative separation or retention of enlisted personnel who
had committed an act and or acts of misconduct.  Section VI of that
regulation prescribed the standards and procedures for processing cases of
individuals who, during their current term of active military service, had
been convicted by a civil court.  An
UD or UOTHC was normally considered appropriate for members separating
under this provision of the regulation.  The separation authority could
issue an honorable discharge or general, under honorable conditions
discharge if it were warranted based on the member's record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that he has been a good citizen since his
discharge and that his discharge should be upgraded as a result was
carefully considered.  However, this factor alone is not sufficiently
mitigating to support granting the requested relief.

2.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met, and his rights were fully
protected throughout the separation process.  Further, his discharge
accurately reflects his overall record of service.  The applicant's record
of misconduct, which was culminated by his civil conviction, did not
support the issue of an HD or GD at the time of his discharge, nor does it
support an upgrade of his discharge at this time.

3.  Although the applicant's current medical problems are unfortunate, in
order to justify correction of a military record the applicant must show to
the satisfaction of the Board, or it must otherwise satisfactorily appear,
that the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 January 1977, the date of his
discharge. Therefore, the time for him to file a request for correction of
any error or injustice expired on 19 January 1980.  He failed to 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

___MKP _  __LWR  _  __REB__  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.




                                  _____Margaret K. Patterson   _
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060010148                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/15                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1977/01/20                              |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |Misconduct (Civil Conviction)           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]