RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 March 2007
      DOCKET NUMBER:  AR20060013074


      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:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Ms. Ernestine R. Fields           |     |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)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he came home on a reenlistment
leave and got into some trouble while intoxicated.  He claims his discharge
was too harsh for the infraction.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 1 November 1962, the date of his discharge.
The application submitted in this case is dated 7 September 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 record shows he initially enlisted in the Regular Army
and entered active duty on 31 January 1961, and on 10 February 1962, he
reenlisted for three years.

4.  The applicant’s Service Record documenting his active duty service from

31 January 1961 through 1 November 1962, shows that was promoted to private
first class (PFC) on 1 June 1961, and this was the highest rank he held
while serving on active duty.  His record documents no acts of valor,
significant achievement, or service warranting special recognition.

5.  On 4 March 1962, while on leave, the applicant was apprehended for
burglary by civil authorities.  On 25 June 1962, he was convicted of second
degree burglary in the Circuit Court, Salem, Indiana, and was sentenced to
a term of two to five years in the Indiana Reformatory, Salem, Indiana.

6.  On 1 October 1962, the applicant completed a statement confirming that
he did not intend to appeal his civil conviction.

7.  On 26 October 1962, the unit commander recommended the applicant be
separated under the provisions of Section III, Army Regulation 635-206, by
reason of civil conviction.

8.  On 1 November 1962, the 3rd Armored Division Staff Judge Advocate
provided the Commanding General a memorandum recommending the applicant be
separated with an UD based on his civil conviction.

9.  On 1 November 1962, the separation authority approved the applicant's
separation under the provisions of Army Regulation 635-206, after waiving
the requirement for a board of officers.  The separation authority also
directed that the applicant receive an UD and that he be reduced to the
lowest enlisted grade.

10.  On 1 November 1962, the applicant was separated with an UD under the
provisions of Section III, Army Regulation 635-206, by reason of civil
conviction.  The DD Form 214 he was issued at the time confirms he
completed a total of
1 year, 7 months, and 16 days of creditable active military service.

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

12.  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 III 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 was normally considered appropriate
for members separating under this provision of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD was too harsh for the offense he
committed was carefully considered.  However, there is insufficient
evidence to support this claim.

2.  The evidence of record confirms the applicant was convicted of second
degree burglary in civil court and was sentenced to incarceration in the
Indiana State Reformatory from two to five years.  It also shows that his
separation processing was accomplished in accordance with the applicable
regulation in effect at the time.  All requirements of law and regulation
were met, and his rights were fully protected throughout the separation
process.  Given the gravity of the offense for which the applicant was
convicted and his record of undistinguished service, his UD was and remains
appropriate.

3.  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 1 November 1962, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 31 October 1965.  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

__KLW __  __CAD__  __EJF___  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 L. Wright____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013074                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/27                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1962/11/01                              |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |Civil Conviction                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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