RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          29 March 2005
      DOCKET NUMBER:  AR20040001226


      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             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Susan A. Powers               |     |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 DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge), Item 11c (Reason and Authority)
"AR 635-209 and Separation Program Number (SPN) 264" be changed to an SPN
code of "413" or "319" or to any code that would improve his employment
opportunities.

2.  The applicant states that at the time of his enlistment, he was a
young, naïve, immigrant with limited English language skills and a heavy
accent.  Recruiting personnel told him that he would be sent to an
accounting program after basic training, however, he was assigned to a
switchboard operator program.  He has since received a Bachelor of Arts
Degree, two Masters' Degrees, a Doctorate Degree and he has gained American
citizenship.  He is making this request because he desires to teach at a
Government institution such as the Central Intelligence Agency or the
United States Military Academy.

3.  The applicant provides in support of his request a Bachelor of Arts
Degree, dated 3 June 1971; Master of Arts Degree, and a Certificate in
Latin America Area Studies, both dated 1 September 1976.  He also provides
a transcript from Queens College of the City University of New York for
courses completed between 1973 and 1977.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 November 1963.  The application submitted in this case is
dated 3 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 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 2 July 1963, at age 23, the applicant enlisted in the Regular Army
for
3 years, unassigned.  Upon completion of basic training at Fort Dix, New
Jersey, he was assigned to Fort Gordon, Georgia for completion of training
in the switchboard operator course.  He never completed the switchboard
operator course and he was never awarded a military occupational specialty
(MOS).

4.  The available evidence shows that upon arrival at Fort Gordon, the
applicant was counseled for a lack of motivation, an inadequate appearance,
frequently going on sick call, refusal to obey orders or to cooperate,
violating military rules and regulations, and for possessing a negative
attitude.

5.  On 15 October 1963, nonjudicial punishment (NJP) under the Uniform
Code of Military Justice (UCMJ) was imposed against the applicant for
being absent without leave (AWOL) from 10-15 November 1963.  His
punishment included a forfeiture of $18.00 pay for 1 month and 3 days of
extra duty and restriction.

6.  On 25 October 1963, the applicant underwent a mental status evaluation.
 The evaluation diagnosed him as having an aggressive, passive type
personality that was chronic to severe, and manifested by an inability to
adjust to military life. It stated he had violated several military rules
and regulations; he suffered from chronic anxiety and tension with
anorexia; he refused to eat; he exhibited depressed feelings, a negative
attitude, and no motivation for service.  The evaluation found his level of
stress to be undetermined; his home was unstable; and he'd made a defective
scholastic and social adjustment.  He left family in Peru at age 4.  He had
a history of emotional instability and a tendency to avoid or flee from
situations which were stressful for him.  The applicant's character
structure appeared deeply ingrained and beyond the scope of rehabilitation
efforts in a military situation.  The applicant was determined to have no
disqualifying mental defect sufficient to warrant disposition through
medical channels.  He was mentally responsible, able to distinguish right
from wrong and to adhere to the right.  He also had the mental capacity to
understand and participate in board proceeding.  The recommendation was for
an administrative separation.  His emotional problems were determined to
have existed prior to his entering the service.

7.  On 28 October 1963, NJP was imposed against the applicant for being
absent from his unit from 1100 to 1700 hours on 19 October 1963.  His
punishment included 14 days of restriction.  The applicant's separation
documents contain a memorandum, dated 29 October 1963, that was written by
the commander and indicates the applicant received a third NJP for failing
to go to his appointed place of duty at the time prescribed.  The date is
not specified.  The NJP proceedings are no longer contained in the
available record.

8.  The commander recommended that a board of officers be convened under
the provisions of Army Regulation 635-209 to determine whether the
applicant should be discharged for unsuitability before the expiration of
his term of service.
On 29 October 1963, the applicant authenticated a statement with his own
signature in which he acknowledged that he understood the basis for the
contemplated action and its effects, and the rights available to him.  He
stated that he had been counseled and did not desire further legal
representation.  He also waived consideration of his case before a board of
officers and indicated that he understood the ramifications of receiving a
less than fully honorable discharge.

9.  On 29 October 1963, the commander recommended that the applicant be
administratively separated under the provisions of Army Regulation 635-209,
for unsuitability, by reason of a character and behavior disorder with a
GD.  The commander stated that numerous members of the chain of command had
counseled the applicant to no avail.  The commander also stated that the
applicant lacked the desired potential of an effective Soldier.  The
applicant expressed that "he wanted out of the Army at any cost."  The
commander stated that the applicant's conduct and efficiency ratings had
been such as to warrant nothing higher than a GD.

10.  On 4 November 1963, competent authority approved the recommendation
and directed the issuance of a GD, under the provisions of Army Regulation
635-209.

11.  On 15 November 1963, the applicant was separated under the provisions
of Army Regulation 635-209, for unsuitability; by reason of a character and
behavior disorder with a GD.  He had completed 4 months and 9 days of
active military service and he had 5 days of lost time due to being AWOL.
He was assigned a SPN of "264" showing the reason and authority for
separation was "character and behavior disorder."

12.  A SPN code of "319" indicates the reason and authority is "erroneous
enlistment."  A SPN code of "413" indicates the reason and authority is "to
enter or return to college, university or equivalent educational
institution."  Neither code is appropriate for the applicant's
circumstances.

13.   The available evidence does not show the applicant has ever applied
to the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitation.

14.  Army Regulation 635-209, in effect at the time set forth the basic
policy, and guidance for the prompt elimination of enlisted personnel.
Paragraph 6 of the regulation provided, in pertinent part, for the
separation of individuals determined to be unsuitable for further service
by reason of a character and behavior disorder.  Under this regulation and
paragraph the appropriate authority could approve an honorable or a general
discharge.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations, then in effect, with no indication
of procedural errors which would have jeopardized his rights.  The
applicant's service record fully supports both the reason for discharge and
the characterization of his service.

2.  The applicant enlisted in the military "unassigned."  His contract did
not stipulate that he would be enrolled in any specific program.
Therefore, the Army was not obligated to train him in the accounting field.
 He enlisted unassigned and he would have been assigned training in
accordance with the needs of the Army upon completion of basic training.

3.  The applicant's Reason and Authority are appropriately shown on his DD
Form 214 as "AR 635-209 with an SPN of "264."  The applicant has provided
no evidence to the contrary.

4.  The applicant's contention that he was young and immature were taken
into consideration and it was determined that he met entrance qualification
standards to include age.  There is no evidence available that indicates he
was any less mature than other Soldiers of the same age who successfully
completed their military service obligation.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 November 1963; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 November 1966.  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

__mhm___  __phm___  __sap___  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.



                                  Melvin H. Meyer
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004000126                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050329                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |19631115                                |
|DISCHARGE AUTHORITY     |AR635-209                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0135                                |
|2.                      |                                        |
|                      3 |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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