RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         28 February 2006
      DOCKET NUMBER:  AR20050009667


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. John M. Moeller               |     |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, reinstatement in the Army for
retirement.

2.  The applicant states, in effect, under the governing regulation,
because he had more than 18 years of service, his separation under the
provisions of chapter 14, Army Regulation 635-300, had to be approved by
Department of the Army (DA).

3.  The applicant provides the following documents in support of his
application:  Self-Authored Memorandum, dated 15 March 1990; Chief,
Personnel Operations Branch Memorandum, dated 23 March 1990; Army Personnel
Command (PERSCOM) Memorandum, dated 5 April 1990; and Chain of Command
Memorandums of Support for Retirement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 13 April 1990.  The application submitted in this case is
dated
31 May 2005.

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 and entered active duty on 2 December 1970.  He was trained in,
awarded, and served in military occupational specialty (MOS) 91B (Medical
Specialist), and the highest rank he attained while serving on active duty
was staff sergeant (SSG).

4.  On 2 September 1988, the applicant was notified by his unit commander
that he was initiating action to separate the applicant for misconduct, and
recommending that the applicant receive an Under Other Than Honorable
Conditions (UOTHC) discharge.

5.  On 2 September 1988, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, its effects,
and of the rights available to him.  Subsequently, the applicant elected to
have his case considered by an Administrative Separation Board (ASB).  He
also requested to personally appear before the ASB and consulting counsel.

6.  On 19 December 1988, the ASB convened at Fort Rucker, Alabama to
consider the applicant's case.  The applicant and his counsel were present.
 After considering all the evidence and testimony, the ASB documented the
following findings:  (1) The applicant was convicted of murder in a
civilian court in Ozark, Alabama; (2) The applicant was sentenced to 45
years in an Alabama prison; and (3) The applicant's duty performance was
barely adequate.  The ASB recommended the applicant be separated and that
he receive an UOTHC discharge.

7.  On 8 March 1990, the Fort Rucker Staff Judge Advocate (SJA) completed a
review of the separation packet on the applicant.  The SJA noted that the
applicant's case had been reviewed by an ASB that recommended the
applicant's UOTHC discharge.  He further noted that the applicant was
appealing his civil conviction and that his discharge could not be executed
until his conviction was final.  He further indicated that the separation
packet was erroneously held by a legal clerk, and that the ASB findings and
recommendations should have been immediately approved, and only the
execution of the discharge held in abeyance until the civil conviction was
affirmed or until the applicant's normal expiration of term of service
(ETS).  The SJA recommended the separation packet be forwarded to DA in
order to allow the applicant to receive an UOTHC discharge upon his ETS on
15 April 1990.

8.  On 20 March 1990, the applicant's company commander requested the
applicant be retained in service beyond his ETS.  He indicated that he
believed that the applicant would quickly accept the responsibilities of a
noncommissioned officer if his civil conviction were overturned.  He
further indicated that he realized the civil conviction was serious;
however, he felt that allowing the applicant to ETS with over 19 years of
service was unjust.

9.  On 20 March 1990, the Commander, Army Aeromedical Center, a colonel,
concurred with the unit commander's recommendation to retain the applicant.
 He indicated that he believed the applicant should be granted an exception
and be allowed to extend his enlistment to meet his retirement date.

10.  On 23 March 1990, the Chief, Personnel Operations Branch, on behalf of
the Commander, Fort Rucker, submitted a memorandum to PERSCOM requesting
final action be taken on the applicant.

11.  On 5 April 1990, the PERSCOM Chief, Transition Management Division,
the appropriate DA representative, approved the applicant's discharge prior
to final action on appeal of his conviction under the provisions of
paragraph 14-5,
Army Regulation 635-200.  This DA official further directed that the
applicant receive an UOTHC discharge and that his DD Form 214 would reflect
"Civilian Conviction" as the narrative reason for his separation.  On 13
April 1990, the applicant was discharged accordingly.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets policies, standards, and procedures for the separation of
enlisted personnel of the Army.  Chapter 14 contains guidance on
separations for misconduct.  Paragraph 14-5 provides the authority to
separate Soldiers who are initially convicted by civil authorities, or when
action is taken that is tantamount to a finding of guilty.  Paragraph 14-6
contains guidance on appeals.  It states, in pertinent part, that upon the
request of the Soldier, or when the commander believes it is appropriate, a
Soldier may be discharged prior to final action on an appeal.  In such
cases, the entire file will be forwarded to DA (PERSCOM) for final
decision.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be reinstated and allowed to
retire because he had completed more than 18 years of service, and the
recommendations from members of his chain of commander were carefully
considered.  However, these factors provide an insufficient evidentiary
basis to support granting the requested relief.

2.  The evidence of record confirms the applicant was afforded the
opportunity to have his case considered by and to personally appear, with
counsel, before an ASB.  The ASB recommended his UOTHC discharge based on
his civil conviction for murder and the resultant 45 year prison sentence.
This recommendation was approved by the PERSCOM Chief, Transition
Management Division, the appropriate DA official.  Therefore, it is
concluded all requirements of law and regulation were met, and his rights
were fully protected throughout the separation process.  As a result, there
is an insufficient evidentiary basis to support granting the requested
relief at this time.

3.  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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 April 1990.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 12 April 1993.  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

___HOF _  ___CAK    ___JMM__  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.




                                  _____Hubert O. Fry_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050009667                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/28                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1990/04/13                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Civil Conviction                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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