RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2007
      DOCKET NUMBER:  AR20070009006


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |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 be
upgraded to an honorable or a general discharge.

2.  The applicant states that when he was in the Army, he was punished for
purchasing a stolen vehicle and that he was not aware the vehicle was
stolen.  He states that he was young and that he made a naïve mistake.

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

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  On 25 February 1970, the applicant enlisted in the Army at age 20, in
Phoenix, Arizona, for 3 years, in the pay grade of E-1.  He successfully
completed his training as a light weapons infantryman.  He was promoted to
the pay grade of E-2 on 25 June 1970.  The applicant's records show that he
was subsequently promoted to the pay grade of E-3.  However, the date of
his promotion is unclear.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on
20 October 1970, for being absent without leave (AWOL) from 10 October
until 18 October 1970.  His punishment consisted of a reduction to the pay
grade of
E-2 and a forfeiture of pay in the amount of $30.00.

4.  On 22 December 1970, NJP was imposed against him for being AWOL from
9 November until 17 November 1970.  His punishment consisted of a reduction
to the pay grade of E-1, restriction for 14 days and extra duty for 14
days.

5.  On 15 June 1972, the applicant was barred from reenlistment in
accordance with Army Regulation 601-280.  His commander cited 500 days of
lost time due to confinement by civil authorities and unsatisfactory
conduct and efficiency rating as the basis for the bar to reenlistment.

6.  The facts and circumstances pertaining to the applicant's discharge are
not on file.  His Report of Transfer or Discharge (DD Form 214) indicates
that he was discharged on 7 July 1972, under the provisions of Army
Regulation 635-206, for misconduct, due to conviction by civil authorities.
 He had completed 11 months and 5 days of net active service and he had
approximately 524 days of lost time due to AWOL and confinement.  He was
furnished an Undesirable Discharge Certificate.

7.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

8.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 33 of the
regulation provided, in pertinent part, that members convicted by civil
authorities would be processed for separation.  An undesirable discharge
was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the applicant's administrative separation was
accomplished in compliance with applicable regulations with no indication
of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore appear to have
been appropriate considering all the facts of the case.

3.  The applicant's contentions that he was young and that he made a naïve
mistake while he was in the Army have been noted.  However, his contentions
are not sufficiently mitigating to warrant the relief requested.  The
evidence of record shows that he had NJP imposed against him twice while he
was in the Army.  He was subsequently convicted by civil authorities and
his acts of misconduct result in his having approximately 524 days of lost
time due to AWOL and confinement.




4.  Considering the nature of his offense, it does not appear that the
characterization of his service is too harsh and in the absence of evidence
to the contrary, it must be presumed that what the Army did in his case was
correct.

5.  In order to justify correction of a military record the applicant must
show 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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RTD___  __CAD__  __EEM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





                                  ___Richard T. Dunbar____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070009006                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070927                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000/ADMINISTRATIVE DISCHARGE       |
|2.  626                 |144.6000/MISCONDUCT                     |
|3.  627                 |144.6100/CONVICTION BY CIVIL AUTH       |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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