RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 March 2007 DOCKET NUMBER: AR20060012923 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. 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 his Undesirable Discharge (UD) be upgraded to an Honorable Discharge (HD). 2. The applicant states he was young and immature. He grew up in orphanages and foster homes. The military should have recognized his youth and immaturity. Since his military service, he has straightened his life out, married, raised a family, and is a grandfather. 3. The applicant provides no additional documentation. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 12 September 1960. The application submitted in this case is dated 3 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's initial enlistment record shows he was born on 13 February 1940 and he enlisted in the Regular Army for 3 years on 30 January 1958; he was 15 days shy of his 18th birthday. There is a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) in the record showing that his mother consented to his enlistment. 4. The applicant was trained in, awarded, and served in military occupational specialty (MOS) 111.07 (Light Weapons Infantryman). He completed airborne training and was awarded the Parachutist Badge. He was assigned to Fort Bragg, NC for duty with Company C, 1st Airborne Battle Group (ABG), 504th Parachute Infantry Regiment (PIR). 5. On 30 July 1958, the applicant reenlisted for 3 years. He received a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing he was honorably discharged to immediately reenlist. In December 1958, he participated in a unit permanent change of station move to Germany. 6. The applicant was court-martialed five times during his military service. On 12 November 1959, he was convicted by a special court-martial of wrongfully appropriating a 3/4-ton truck; on 28 March 1960, he was convicted by a summary court-martial of going from his place of duty without authority and wrongfully appropriating a 1/4-ton truck; on 12 April 1960, he was convicted by a summary court-martial of failure to repair, but found not guilty of failing to obey a lawful order; on 15 June 1960, he was convicted by a summary court-martial of being absent without leave (AWOL) from 0100 hours to 0400 hours, 5 June 1960; and on 13 August 1960, he was convicted by a special court-martial of being AWOL from 5-28 July 1960. 7. The administrative discharge packet is not in the applicant's record. However, the record contains a properly constituted DD Form 214, signed by the applicant, showing that he was discharged under the provisions of Army Regulation (AR) 635-208. AR 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. The regulation provided, in pertinent part, that members found to be unfit for further military service, and without rehabilitative potential, would be separated. An UD was normally considered appropriate. 8. The applicant was issued an UD on 12 September 1960. He had 2 years, 6 months, and 21 days of creditable active Federal service and 23 days of lost time for AWOL. 9. There is no record of the applicant making application to the Army Discharge Review Board for a discharge upgrade during that board's 15-year statute of limitations. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his UD was the result of his youth and immaturity. Although he was 15 days shy of his 18th birthday when his mother consented to his enlistment, he was almost 20 years old when he committed most of his acts of indiscipline. His youth and immaturity are not viewed as factors in his receipt of an UD. 2. Although the applicant may have straightened out his life, raised a family, and became a grandfather in his late 60's, this is not sufficient reason to upgrade his discharge. 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 12 September 1960; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 September 1963. 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 __klw___ __cad___ __eif___ 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. Kenneth L. Wright ______________________ CHAIRPERSON INDEX CASE ID AR20060012923 SUFFIX RECON DATE BOARDED 20070327 TYPE OF DISCHARGE (UD) DATE OF DISCHARGE 19600912 DISCHARGE AUTHORITY AR 635-208 DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 110.0000 2. 3. 4. 5. 6.