RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 April 2007
      DOCKET NUMBER:  AR20060014141


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. 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 that his discharge be upgraded.

2.  The applicant states he was in civilian confinement in the State of
Georgia from April of 1973 through the middle of 1975.  He was discharged
around September 1973.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 November 1973.  The application submitted in this case is
dated                6 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 enlisted in the Regular Army on 27 November 1970.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 71B (Clerk Typist).

4.  Between 1 February 1971 and 8 July 1972, the applicant accepted
nonjudicial punishment under Article 15 on six occasions for disobeying a
lawful order; for being absent without leave (AWOL) (from on or about 4 to
on or about 11 March 1971); for going from his appointed place of duty and
two specifications of failing to go to his appointed place of duty; for
being AWOL (from on or about 6 to on   or about 19 July 1971); for being
AWOL (from on or about 6 to on or about        11 August 1971); and for
being AWOL (from on or about 24 to on or about         28 June 1972),
disobeying a lawful command, and being apprehended in an off-limits
residence after curfew, respectively.

5.  On 29 July 1972, the applicant voluntarily admitted to the use of
heroin and requested amnesty.  Separation proceedings under the provisions
of Army Regulation 635-212 for unfitness were initiated on this date.  On
31 July 1972, his request for amnesty was approved and separation
proceedings under the provisions of Army Regulation 635-212 were apparently
halted.

6.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he
departed AWOL on 20 February 1973.

7.  On 4 April 1973, the applicant was apprehended by Smyrna, GA city
police.  On 5 April 1973, he was found guilty of a traffic violation.
Charges of aggravated assault and burglary were pending with a court date
set for 5 June 1973.

8.  The applicant’s separation packet under the provisions of Army
Regulation 635-206, for civil conviction, is not available.  His DA Form 20
shows he was found guilty of burglary and aggravated assault and sentenced
to 6 years in the Georgia State Penitentiary (4 years on probation).

9.  The Army Discharge Review Board (ADRB) proceedings show that on
13 September 1973 the applicant indicated he did not intend to appeal his
conviction.  On 26 October 1973, the applicant stated he waived a board but
[then] requested personal appearance and counsel.  A board met, but the
applicant was absent due to civil confinement.  His counsel was present.
Counsel for the applicant made an argument.  The board found the applicant
was undesirable for further retention as evidenced by a history of numerous
AWOLs and because of civil confinement for the offenses of burglary and
aggravated assault.  The board recommended he be separated because of civil
conviction with an undesirable discharge.  On 21 November 1973, the
appropriate authority approved the recommendation and directed the
applicant be furnished an undesirable discharge.

10.  On 29 November 1973, the applicant was discharged, with an undesirable
discharge, under the provisions of Army Regulation 635-206 for civil
conviction.  He had completed 2 years, 1 month, and 26 days of creditable
active service with 309 days of lost time and 2 days lost subsequent to his
normal expiration of term of service.

11.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for misconduct
(fraudulent entry, conviction by civil court, and absence without leave or
desertion).  That regulation provided, in pertinent part, for the
elimination of enlisted personnel for misconduct when they were initially
convicted by civil authorities, or action taken against them which was
tantamount to a finding of guilty, of an offense for which the maximum
penalty under the Uniform Code of Military Justice was death or confinement
in excess of 1 year.

12.  On 10 June 1976, the ADRB denied the applicant's petition to upgrade
his discharge.  On 22 April 1981, the ADRB again denied his petition to
upgrade his discharge.

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.

14.  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.

15.  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 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 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 administrative separation was accomplished in
compliance with regulations applicable at the time.  Given his conviction
by a civil court for burglary and aggravated assault and his extensive
record of prior misconduct, it appears he was appropriately given an
undesirable discharge.

2.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 22 April 1981.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 21 April 1984.  However,
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

__clg___  __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 L. Greenway__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014141                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070412                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19731129                                |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |A61.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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