RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 January 2005
      DOCKET NUMBER:  AR20040001526


      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:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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, as the wife of the deceased former service member (FSM),
requests that her late husband's undesirable discharge characterized as
under other than honorable conditions be upgraded to a general (under
honorable conditions) discharge.

2.  The applicant states, in effect, that the FSM did go absent without
leave (AWOL) while on active duty but prior to his discharge he received
credit for honorable service.

3.  The applicant states that the FSM was a good husband and they raised
eight children together and she wishes to upgrade the FSM's discharge to
acquire benefits administered by the Department of Veterans Affairs (DVA).

4.  The applicant provides a Certificate of Death, dated 7 December 2003,
and five letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 5 September 1964.  The application submitted in this case is
dated 21 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.  Evidence of record shows that the FSM enlisted in Oklahoma Army
National Guard on 5 October 1959 and served until he was honorably
separated on 4 October 1962.  He successfully completed basic training and
advanced individual training and was awarded the military occupational
specialty 642 (Heavy Vehicle Driver).  On 27 May 1963 the FSM enlisted in
the Regular Army.

4.  On 7 September 1963, the FSM accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for uniform and
pass violation.

5.  On 9 November 1963, the FSM accepted NJP under Article 15, UCMJ for
uniform and pass violation.
6.  On 29 November 1963, the FSM accepted NJP under Article 15, UCMJ for
being AWOL on 29 November 1963.

7.  On 17 March 1964, the FSM accepted NJP under Article 15, UCMJ for being
in an off-limits area.

8.  On 7 May 1964, the FSM accepted NJP under Article 15, UCMJ for being
AWOL on 4 May 1964.

9.  On 13 May 1964, the FSM accepted NJP under Article 15, UCMJ for missing
bed check on 11 May 1964.

10.  On 30 June 1964, the FSM was convicted by a summary court-martial of
being AWOL for the period from 24 June 1964 through 25 June 1964.  He was
sentenced to perform hard labor without confinement for one month and to
forfeit $10.00 for one month.

11.  On 11 July 1964, the FSM was convicted by a summary court-martial of
being AWOL on 8 July 1964.  He was sentenced to perform hard labor for one
month and to forfeit $20.00 for one month.

12.  On 13 July 1964, the FSM's unit commander recommended that he be
eliminated from the service under the provisions of Army Regulation 635-208
(Personnel Separations) for unsatisfactory conduct and efficiency.

13.  On 13 July 1964, the FSM consulted with the Defense Counsel at Drake-
Edwards Kaserne, Frankfurt, Germany.  The FSM was advised of his rights and
the effect of a waiver of those rights.

14.  The FSM was also advised of the basis for his separation under the
provisions of Army Regulation 635-208.  The FSM indicated that he was
counseled by appropriate counsel, that he did not waive consideration of
his case by a board of officers, that he did not provide statements on his
own behalf and that he did not waive representation by military counsel.

15.  On 14 July 1964, the FSM underwent a mental evaluation by a medical
physician that determined that he could distinguish right from wrong and
that he possessed sufficient mental capacity to understand and participate
in board proceedings.  The psychiatrist noted the FSM was a fairly robust
alert man who spoke clearly and coherently.  The psychiatrist continued
that the FSM manifested an immature outlook with a blatant disregard for
his responsibilities towards himself, the Army, and his family.  He
concluded that the FSM represented a rehabilitation risk and recommended he
be separated from the service.

16.  On 20 July 1964, the FSM was notified to appear before a board of
officers to testify on his behalf, either with counsel or without under the
provisions of Army Regulation 635-208.  The FSM notified the board he would
be represented by counsel and that he did not have witnesses on his behalf.

17.  On 30 July 1964, the board found that the FSM 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 FSM be discharged from the service under the
provisions of Army Regulation 635-208 and that he be furnished an
"Undesirable Discharge."

18.  On 14 August 1964, the appropriate authority approved the action
recommended by the board of officers.

19.  On 5 September 1964, the FSM was discharged from active duty and was
issued an undesirable discharge under the provisions of Army Regulation 635-
208.  He served a total of 4 years and 10 months of creditable active
service and had 32 days of lost time due to AWOL and confinement.

20.  The applicant submitted an undated letter of support from a family
friend that stated he knew the FSM for 15 years.  The author further stated
that, "The FSM was honest and thoughtful while maintaining a high degree of
respect though out the total community."

21.  The applicant submitted a letter of support from a family friend,
dated
23 March 2003, that stated she has known the FSM and his wife for several
years.  The author further stated "They were very reliable, always taking
care of there (sic) responsibilities, family oriented, and loving people."

22.  The applicant submitted a letter of support from a relative, dated
26 September 2003.  The author stated, in effect, that the FSM was the most
loving man who helped you get through the hard times.  The author continued
that the FSM was willing to help those in need and did his best at making
life just a pile of fun.

23.  The applicant submitted a letter of support from her granddaughter,
dated
30 September 2002, which stated the FSM was a very special grandfather.
The author further stated that he helped her with problems and gave her
good advice.
24.  The applicant submitted an undated letter of support from her grandson
that stated the FSM worked hard so that his grandmother did not have to.
He gave him good advice and was a person of high morals.

25.  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 judgment 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.

26.  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.

27.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM went AWOL while on active duty but
prior to his discharge he received credit for honorable service.  The FSM's
prior service conduct in the Army National Guard is noteworthy.  However,
prior good military service conduct alone is not a basis for upgrading a
discharge and, upon review, the FSM's good prior service conduct is not
sufficient to mitigate his indiscipline in the Regular Army.

2.  The applicant further contends that the FSM's discharge should be
upgraded so that she may receive DVA benefits.  However, the ABCMR does not
correct records soley for the purpose of obtaining eligibility for DVA
benefits.  In addition, granting veteran's benefits is not within the
purview of this Board and any questions regarding eligibility should be
addressed to the DVA.

3.  Evidence shows that the FSM was properly and equitably discharged in
accordance with the regulations in effect at the time.

4.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the FSM were
fully protected throughout the separation process.

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

6.  The FSM's records show that he was convicted by two summary
courts-martial, received seven Article 15s, and had four instances of AWOL.
 The FSM had completed 4 years and 10 months before his separation with a
total of 32 lost days due to AWOL and confinement.  Based on these facts,
the FSM’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 or general discharge.

7.  Records show the FSM should have discovered the alleged error or
injustice now under consideration on 5 September 1964; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 4 September 1967.  However, the FSM 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

__WTM__  __ECP__  __JRM __  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.




                                  ___ Mr. Walter T. Morrison_
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040001526                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |13 January 2005                         |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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