RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 May 2007
      DOCKET NUMBER:  AR20060017411


      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      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald J. Weaver              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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, upgrade of his under other than
honorable conditions discharge.

2.  The applicant states, in effect, that he did not do anything wrong
while in the Army, something happened in Newark, New Jersey, with friends.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 13 February 1975, the date of his discharge from active
duty.  The application submitted in this case is dated 4 December 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 4 November 1971, for a
period of 3 years.  He completed the required training and was awarded
military occupational specialty 36K (Field Wireman).  The highest rank he
attained while serving on active duty was Private (PV2), pay grade E-2.

4.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.

5.  On 31 March 1972, the applicant was convicted by a summary court-
martial of being absent without leave (AWOL) on or about 3 March 1972 and
remained absent until 28 March 1972.  His sentence consisted of hard labor
with confinement for 30 days, and a forfeiture of $192.00 pay. 

6.  On 7 August 1972, the applicant accepted nonjudicial punishment (NJP)
for having in his possession instruments devices, and paraphernalia used
for unlawfully injecting a narcotic.  His imposed punishment was a
forfeiture of $100.00 pay per month for two months.
7.  On 4 July 1973, the applicant was charged with rape, atrocious assault,
assault and battery, and eluding the police.  The applicant pled guilty to
atrocious assault and battery and was sentenced to three to five years at
the State Reformatory.

8.  On 8 April 1974, the applicant's commander notified him that he was
initiating action to discharge him under the provisions of Army Regulation
635-206 (Personnel Separations) for his conviction by a civil court for
atrocious assault and battery.

9.  The commander advised the applicant of his right to have his case
considered by a board officers, to appear in person before a board
officers, to submit statements in his own behalf; to be represented by
counsel, to waive any of these rights, and to withdraw any waiver of rights
at any time prior to the date the discharge authority directs or approves
his discharge; and request his case be presented before a board of
officers.

10.  On 15 April 1974, the applicant submitted a statement acknowledging
that he had been advised by counsel of the basis for the contemplated
action against him under the provisions of Army Regulation 635-206 due to
conviction by a civil court.  The applicant requested consideration by a
board of officers and waived a personal appearance.  The applicant stated
that he was not submitting statements in his own behalf and that he waived
civilian counsel.

11.  On 29 January 1975, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 13 February 1975, the applicant was discharged
accordingly.  The DD Form 214 he was issued confirms he completed a total
of 1 year, 5 months and 4 days of creditable active military and 666 days
lost time.

12.  On 16 March 1982, the Army Discharge Review Board denied the
applicant's petition for an upgrade his discharge.

13.  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.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic
authority for the separation of enlisted personnel.  Chapter 10 of that
regulation provides, in pertinent part, that a member who has committed an
offense or offenses for which the authorized punishment includes a punitive
discharge may,
at any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trail by court-martial.
At the time, an undesirable discharge was normally considered appropriate.

15.  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 (emphasis added), or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant was carefully considered and found to
be insufficient in merit.

2.  The applicant's contentions have been noted; however, the applicant was
recommended for discharge from the Army by reason of conviction by civil
authorities.  A board of officers convened and recommended the applicant be
discharged because of his conduct.  Neither evidence submitted with the
application or the evidence of record support his contentions.

3.  In the absence of evidence to the contrary, the applicant’s discharge
was conducted in accordance with law and regulations applicable at the
time.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 16 March 1982.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 15 March 1985.  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

___RJW__  ____JCR  ___DWT_  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.




                                  ____Ronald J. Weaver_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/25/24                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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