RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 April 2007
      DOCKET NUMBER:  AR20060013754


      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. Curtis Greenway               |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 had already received an
honorable discharge, and that he had been subjected to Agent Orange and
suffers from a Post Traumatic Stress Disorder (PTSD).

3.  The applicant provides his separation document (DD Form 214) in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that  occurred on 19 May 1976, the date of his discharge.  The application
submitted in this case is dated 19 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 that he initially enlisted in the Regular
Army (RA) and entered active duty on 2 May 1967.  He was initially trained
in and awarded military occupational specialty (MOS) 64C (Light Vehicle
Driver) on
11 August 1967.

4.  On 19 May 1969, the applicant was honorably discharged for the purpose
of immediate reenlistment.  The DD Form 214 he was issued at the time shows
he completed a total of 2 years and 18 days of active military service as
of the date of his separation, and that he held the rank of specialist four
(SP4).  On 20 May 1969, the applicant reenlisted in the RA for six years.

5.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the Republic of Vietnam (RVN) from 28 September 1967 through
27 September 1968.

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows
that during his active duty tenure, he earned the National Defense Service
Medal, Vietnam Service Medal, RVN Campaign Medal, 2 Overseas Bars, and the
Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record
documents no acts of valor or significant achievement.

7.  Item 44 (Time Lost) of the applicant's DA Form 20 shows that he accrued
a total of 2,423 days of time lost due to several periods of being absent
without leave (AWOL), and military and civilian confinement.

8.  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 31 August 1967, a Summary Court-Martial
(SCM) conviction on 11 July 1969, and a Special Court-Martial (SPCM)
conviction on
29 April 1970.

9.  On 31 August 1967, the applicant accepted NJP for being absent from his
place of duty without proper authority on 28 August 1967.  His punishment
for this offense was a forfeiture of $21.00 and 7 days of restriction and
extra duty.

10.  On 11 July 1969, an SCM found the applicant guilty of violating
Articles 86 and 92 of the UCMJ.  The SCM found the applicant guilty of
violating Article 92 by disobeying the lawful order of a superior
commissioned officer on 30 June 1969.  It also found him guilty of
violating Article 86 by being AWOL from
5 through 7 July 1969.  The resultant sentence was a reduction to private/E-
1 (PV1), forfeiture of $80.00, and confinement at hard labor for one month.


11.  On 29 April 1970, an SPCM found the applicant guilty of violating
Article 86 of the UCMJ by being AWOL from 2 February through 14 April 1970.
 The resultant sentence was hard labor without confinement for 80 days.

12.  On 18 May 1970, the applicant departed AWOL from his organization at
Fort Hood, Texas.

13.  On 17 December 1970, the applicant was found guilty of the offense of
robbery in the State of Texas District Court, Tarrant County, Texas, and he
was sentenced to not less than 5, nor more than 12 years confinement in the
Texas State Penitentiary.

14.  On 18 April 1975, the applicant was found guilty of the offense of
aggravated robbery in the State of Texas District Court, Tarrant County,
Texas, and he was sentenced to not less than 5, nor more than 50 years
confinement in the Texas State Penitentiary, Huntsville, Texas.
15.  On 9 June 1975, the clerk of the State of Texas District Court,
Tarrant County, Texas, completed a statement certifying that as of that
date, the applicant had given no notice of appeal.

16.  The applicant's Military Personnel Records Jacket (MPRJ) is void of
any indication that the applicant was suffering from a physically or
mentally disabling condition at the time of his discharge.

17.  On 6 May 1976, his unit commander recommended the applicant be
eliminated from the Army based on his having been AWOL since 29 September
1970.

18.  On 7 May 1976, the separation authority approved the applicant's
discharge and directed he receive an UD.  On 19 May 1976, the applicant was
discharged accordingly under the provisions of Section VI, Army Regulation
635-206.  The DD Form 214 he was issued shows he completed a total of 2
years, 4 months, and 29 days of creditable active military service, and
that he accrued 2423 days of time lost due to AWOL, and military
confinement and civilian confinement.

19.  On 31 July 1978, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.  The ADRB noted that
although the applicant had served in the RVN, upon his return to the United
States he began a series of AWOLs, which resulted in 1 SCM conviction and 1
SPCM conviction.  It also noted that the applicant had been arrested and
convicted of aggravated assault with a deadly weapon and robbery and
sentenced to not more than 50 years imprisonment in the Texas Department of
Corrections, Huntsville, Texas.

20.  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, which included civil
convictions.  An UD was normally considered appropriate for members
separating under the provisions of this regulation.  The separation
authority could approve a general, under honorable conditions discharge
(GD) or honorable discharge (HD) if warranted based on the member's overall
record of service.

21.  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's contentions that he had already received an honorable
discharge, and that he had been subjected to Agent Orange and suffers from
a Post Traumatic Stress Disorder (PTSD) were carefully considered.
However, there is insufficient evidence to support these claims.

2.  The applicant's MPRJ is void of any medical treatment records showing
he was ever treated for a medically or mentally disqualifying condition
that would have warranted his processing through medical channels at
anytime during his active duty service.  Further, his 2 years and 18 days
of honorable active duty service and his service in the RVN are properly
document on the DD Form 214 he was issued on 19 May 1969.

3.  The evidence of record reveals the applicant had an extensive
disciplinary history that included his acceptance of NJP, his conviction by
an SCM, and his conviction by an SPCM.  It further shows he accrued 2, 423
days of time lost due to several separate periods of being AWOL, and
military confinement and civilian confinement.

4.  The applicant's record also confirms he had two civil court felony
convictions.  The first on 17 December 1970 for robbery and the second on
15 April 1975 for aggravated robbery, which resulted in his being sentenced
to not less than 5 nor more than 50 years of imprisonment in the Texas
State Penitentiary, Huntsville, Texas.

5.  The evidence of record confirms the applicant’s 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 extensive record of
misconduct, there was no basis to support an HD or GD at the time of his
discharge, and there is an insufficient evidentiary basis to support an
upgrade of his discharge at this late date.

6.  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.
7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 31 July 1978.  As
a result, the time for him to file a request for correction of any error or
injustice to this Board expired on 30 July 1981.  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

___CG __  __MJF __  __EEM __  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.




                                  ____Curtis Greenway_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013754                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/04/12                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1976/05/19                              |
|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.                      |                                        |


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