RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 June 2007
      DOCKET NUMBER:  AR20070000860


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 undesirable discharge be upgraded to a
general discharge or that it be changed to a medical discharge.

2.  The applicant states he was found not guilty of the charges against
him.  He also states, in effect, that he is under mental hygiene care for
conditions (mental strain and depression) that developed while he was in
the Army.  He would like his condition to be reviewed to determine if he is
eligible for some type of compensation for his disability of post-war
syndrome.  The evaluation showed he could adhere to the right [and know
right from wrong] at the time [of his discharge proceedings].  Yet, he must
rely on medication for his condition.  He went through a shock about his
trial by court-martial while in the service.

3.  The applicant provides four self-authored statements; a 5 January 1967
letter from the Office of the County Prosecutor of Monmouth County, NJ; a
17 March 1967 letter from Headquarters, U. S. Army School/Training Center,
Fort Gordon, GA with a second and a fourth indorsement; and a copy of his
DD Form 214 (Armed Forces of the United States Report of Transfer or
Discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 July 1967.  The application submitted in this case is
dated           8 January 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 enlisted in the Regular Army on 20 December 1965.  He
indicated in his enlistment documents that he had never been arrested,
charged, held, convicted, imprisoned, given a suspended sentence, or placed
on probation and that he did not have final disposition ending on any
charge.

4.  The applicant completed basic combat training on or about 26 March
1966.

5.  In May 1966, the applicant was arrested and convicted in Augusta, GA
for possessing and improperly shooting a deadly weapon.  Following release,
he was arrested on 2 July 1966 for disorderly conduct.  He was again
arrested on     6 July 1966 and subsequently convicted and confined for
disorderly conduct and weapon charges.

6.  On 29 August 1966, the applicant was returned to Monmouth County, NJ to
face grand larceny charges.  He was confined by civil authorities until he
was acquitted on 20 December 1966.

7.  On 4 March 1967, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for interfering with an
Augusta, GA policeman in the performance of his duties.

8.  On 11 March 1967, the applicant was recommended for separation for
fraudulent entry for failing to disclose a pre-service record which
included          twelve arrests in seven jurisdictions for offenses
ranging from a violation of motor vehicle regulations to grand larceny and
assault with a deadly weapon.

9.  On 12 April 1967, a psychiatric evaluation found no evidence of any
mental condition which warranted the applicant’s hospitalization,
treatment, or medical separation.  He was found to be able to distinguish
right from wrong and to adhere to the right.

10.  On 13 April 1967, the applicant consulted with counsel and reserved
the right to have a board of officers consider his case, to be represented
by counsel, and to submit statements in his own behalf.

11.  On 14 June 1967, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for disrespect to and
threatening a noncommissioned officer and for willful disobedience.

12.  On an unknown date, the applicant again consulted with counsel and
elected to waive his rights in the separation process.

13.  On 6 July 1967, the applicant was arrested in Augusta, GA for shooting
into a house, being drunk, being disorderly, and resisting arrest.

14.  The appropriate authority approved the recommendation to separate the
applicant under the provisions of Army Regulation 635-206 for fraudulent
entry.

15.  On 27 July 1967, the applicant completed a separation physical
examination and was found qualified for separation.
16.  On 27 July 1967, the applicant was discharged with an undesirable
discharge and a characterization of service of under other than honorable
conditions.

17.  Army Regulation 635-206, then in effect, set forth the policy and
prescribed the procedures for separation of personnel for misconduct by
reason of fraudulent entry, civil conviction, absence without leave, and
desertion.  Elimination action was required upon discovery and verification
of any deliberate material misrepresentation, omission, or concealment of
facts that might have resulted in rejection.  An individual sentenced to a
term of imprisonment, probation, or suspended sentence of more than a year
had to be considered for separation.

18.  Army Regulation 635-206 further provided that an individual who had
concealed a conviction for which he was sentenced to a term of confinement,
probation, or parole of one year or less could be retained if the overall
record warranted retention.  If any form of civilian custody (including
probation) was yet to be served, the individual could be retained only if
the remaining civilian custody was suspended by the cognizant authority.

19.  Army Regulation 635-206 provided that when separation for fraudulent
entry was warranted an undesirable discharge was normally issued, but an
honorable or general discharge was authorized.  The type of discharge was
to be characterized by the individual’s in-service activity, including
fraudulently obtaining pay and allowances.

20.  Army Regulation 635-200 is the current regulation that governs the
separation of enlisted personnel.  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.

21.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  Under the laws governing the Army Physical Disability
Evaluation System, Soldiers who sustain or aggravate physically unfitting
disabilities must meet several line of duty criteria to be eligible to
receive retirement and severance pay benefits.  One of the criteria is that
the disability must have been incurred or aggravated while the Soldier was
entitled to basic pay or was the proximate cause of performing active duty
or inactive duty training.

22.  Army Regulation 635-40 also states, in pertinent part, that an
enlisted Soldier may not be referred for, or continue, physical disability
processing when action has been started under any regulatory provision
which authorizes a characterization of service of under other than
honorable conditions unless the general court-martial convening authority
finds that the disability is the cause, or a substantial contributing
cause, of the misconduct that might result in a discharge under other than
honorable conditions or that other circumstances warrant disability
processing instead of alternate administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
compliance with regulations applicable at the time with the appropriate
characterization of service.  Considering his overall record of service,
the characterization of his discharge as under other than honorable
conditions was and still is appropriate.

2.  The applicant’s separation for fraudulent entry was not based upon the
charges for which he was acquitted by the Monmouth County, NJ civil
authorities in December 1966.  He was processed for separation for failing
to disclose at the time of his December 1965 enlistment a pre-service
record which included twelve arrests in seven jurisdictions for offenses
ranging from a violation of motor vehicle regulations to grand larceny and
assault with a deadly weapon.

3.  The evidence of record shows that the applicant twice accepted
nonjudicial punishment under Article 15, Uniform Code of Military Justice,
but there is no evidence of record to show he was ever court-martialed.

4.  Because the applicant was separated under a regulatory provision which
authorized a characterization of service of under other than honorable
conditions, he was not eligible for referral to the Physical Disability
Evaluation System.

5.  As the applicant noted, a psychiatric evaluation, presumably performed
by competent military medical authorities, found no evidence of any mental
condition which warranted his hospitalization, treatment, or medical
separation and found that he was found to be able to distinguish right from
wrong and to adhere to the right.

6.  Even if the applicant made the argument that the general court-martial
convening authority should have determined that his mental condition was
the cause, or a substantial contributing cause, of the misconduct that
resulted in his discharge under other than honorable conditions, the
misconduct (i.e., the failure to disclose his pre-service record) occurred
prior to his enlistment.  Therefore, his condition would have failed one of
the line-of-duty criteria for referral to the Physical Disability
Evaluation System -- that the disability must have been incurred or
aggravated while the Soldier was entitled to basic pay or was the proximate
cause of performing active duty or inactive duty training.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 July 1967; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         26 July 1970.  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

__mkp___  __rdg___  __rch___  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                 |AR20070000860                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070614                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19670727                                |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |A62.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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