RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2005
      DOCKET NUMBER:  AR20040000640


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 discharge be upgraded from general
under honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that he was young and admitted he over
drank at the time of his military service.  He further states that his
problems center around two incidents while returning late from official
leave that involved alcohol consumption.

3.  The applicant continues that he completely stopped drinking over 25
years ago and he is receiving 100 percent service connected compensation
since his retirement from employment.

4.  The applicant concludes that he has raised a family, is active in the
community, attends church on a daily basis, donates time and energy to the
local Disabled American Veterans (DAV), and is a good husband.

5.  The applicant provides a Department of Veterans Affairs Entitlement
Amount and Payment Start Date, dated 10 January 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 December 1957, the date of his separation from the Army.
The application submitted in this case is dated 20 April 2004.

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 limitation 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.  On 11 June 1935, the applicant was born.  He enlisted in the Regular
Army on 22 October 1954 for a period of three years.  He successfully
completed basic combat training and advanced individual training and was
awarded military occupational specialty 111.07 (Light Weapons Infantryman).



4.  On 13 July 1955, the applicant was convicted by a special court-martial
for being absent without leave (AWOL) for the period 16 June 1955 through
11 July 1955.  He was sentenced to perform hard labor for six months and to
forfeit $65.00 for six months.

5.  On 15 April 1957, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for refusing to
wake for guard duty.

6.  On 23 May 1957, the applicant was convicted by a summary court-martial
for being incapacitated for duty.  He was sentenced to be reduced to
private/pay grade E-1, to perform hard labor for 30 days, and to forfeit of
$70.00 for one month.

7.  On 23 September 1957, the applicant was convicted by a summary
court-martial for being AWOL from 1 September 1957 through 2 September
1957.  He was sentenced to be reduced to private/pay grade E-1, to perform
hard labor for 30 days, and to forfeit of $65.00 for one month.

8.  On 5 November 1957, the applicant underwent a neuropsychiatric
evaluation and was found to have an emotional instability reaction,
chronic, moderate, manifested by excessive alcohol intake, and fluctuating
emotional attitudes.  The Medical Corps psychiatrist opined that the
applicant was mentally responsible and able to distinguish right from wrong
and to adhere to the right.  He opined that the Army must shoulder much of
the responsibility for the applicant's  present situation.  Command should
have recognized the applicant's alcohol problem long ago and made an effort
to help him.

9.  The applicant's unit commander apparently recommended that he be
considered by a board of officers to determine if he should be separated in
accordance with Army Regulation 635-208 (Personnel Separations).

10.  On 8 November 1957, the applicant was notified to appear before a
board of officers to testify on his behalf, either with counsel or without.
 The memorandum further stated the reason for the action was for
undesirable habits or traits of character and repeatedly committed petty
offenses.  The applicant notified the board he would be represented by
counsel and that he did not have witnesses on his behalf.




11.  On 29 November 1957, the board found that the applicant had
undesirable habits or traits of character and repeatedly committed petty
offenses that rendered him unfit for further retention in the service.  The
board recommended that the applicant be discharged from the service under
the provisions of Army Regulation 635-208 and that he be furnished an
"Undesirable Discharge."

12.  On 4 December 1957, the appropriate authority approved the action
recommended by the board of officers.

13.  The applicant's DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) shows that, on 31 December 1957, he was
discharged from active duty and was issued an under other than honorable
conditions discharge under the provisions of Army Regulation 635-208.

14.  Item 11c (Reason and Authority) of the applicant's DD Form 214
contains the entry SPN 488 (Separation Program Number).  Army Regulation
635-5 (Separation Documents) shows that SPN 488 is authorized for
separations under the provisions of Army Regulation 635-208 with the
following associated narrative reason:  "Discharged because of undesirable
habits or traits of character."

15.  On an unknown date the Army Discharge Review Board (ADRB) upgraded the
applicant's discharge.  On 6 October 1969, the ADRB considered the
applicant's case and affirmed his discharge upgrade.  Records show that the
applicant was issued a corrected DD Form 214 that showed his discharge
Under Conditions Other Than Honorable was changed to Under Honorable
Conditions.

16.  Item 11c of the new DD 214 contains the entry Army Regulation
635-212 (Discharge-Unfitness and Unsuitability).  The entry does not show a
SPN.  Item 13a contains the entry "Under Honorable Conditions."

17.  On 30 March 1981, the ADRB Board reconsidered the applicant’s request
to further upgrade his discharge.  The ADRB majority determined that the
discharge was proper and equitable and that the discharge was properly
characterized as under honorable conditions.

18.  The minority ADRB board members voted to grant the applicant full
relief. The members noted that the applicant's acts of indiscipline were
alcohol related and relatively minor and also noted his neuropsychiatric
evaluation, his Indian background and the fact that he was raised on a
Indian reservation.

19.  The applicant provided a Department of Veterans Affairs Entitlement
Amount and Payment Start Date that shows the dollar amount assigned for his
service connected compensation and payment effective date.

20.  Army Regulation 635-208 set forth the policy for administrative
separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation
provided, in pertinent part, for the separation of personnel where there
was evidence of an antisocial or amoral trend, chronic alcoholism,
criminalism, drug addiction, pathological lying, or misconduct.  Action to
separate an individual was to be taken when, in the judgement of the
commander, it was clearly established that rehabilitation was impractical
or was unlikely to produce a satisfactory soldier.  When separation for
unfitness was warranted, an undesirable discharge was normally issued.

21.  Army Regulation 635-212, then in effect, set forth the policy and
procedures for administrative separation of enlisted personnel for
unfitness.  It provided, in pertinent part, for discharge due to unfitness
because of apathy of those individuals who displayed a lack of appropriate
interest and/or an inability to expend effort constructively.  When
separation for unfitness was warranted, an honorable or general discharge
was issued as determined by the separation authority based upon the
individual's entire record.

22.  Army Regulation 635-200, paragraph 3-7, 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.

23.  Army Regulation 635-200, paragraph 3-7, 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.

24.  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 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was young and did not realize the
consequences of his drinking problem.

2.  Records show that the applicant was 19 years and 4 months old at the
time his active service began and 22 years and 6 months old at the time of
his discharge.  He successfully completed basic combat training and
advanced individual training and knew the Army's standards of conduct.
Therefore, his contention that he was young at the time of his offenses
does not mitigate his indiscipline.

3.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time and that the ADRB
later upgraded the applicant's discharge from Under Conditions Other Than
Honorable to Under Honorable Conditions.

4.  The applicant’s post service achievements are noteworthy.  However,
that alone is not a basis for upgrading a discharge and, upon review, the
applicant's good post service achievements are not sufficient to mitigate
his indiscipline in the Army.

6.  The applicant's records show that he was convicted by one special
court-martial, two summary courts-martial, received one Article 15, and had
two instances of AWOL.  The applicant had completed 2 years, 9 months and 2
day of his 3-year enlistment with a total of 159 lost days due to AWOL and
confinement.  Based on these facts, the applicant’s service clearly did not
meet the standards of acceptable conduct and performance of duty for Army
personnel which are required for issuance of an honorable discharge.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 March 1981, the date of the last
ADRB action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 29 March 1984.  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

__LDS _   __JTM___  __CAK__  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.




                                  ____Linda D. Simmons__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000640                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |11 January 2005                         |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |31 December 1957                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0133.000                            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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