RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          3 March 2005
      DOCKET NUMBER:  AR20040001923


      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. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Margaret K. Patterson         |     |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 undesirable discharge (UD) be upgraded
to a fully honorable discharge.

2.  The applicant states, in effect, that after being separated from the
Army of the United States (AUS) with a UD, he served in the United States
Army Reserve (USAR) and received an honorable discharge.  Forty years
later, he has found out that his USAR service time is wasted time because
of the UD that he received from the AUS.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 11 July 1961.  The application submitted in this case is dated
25 March 1963.

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 July 1961, the applicant was inducted into the AUS.  He completed
the training requirements and was awarded military occupational specialty
(MOS) 131.00 (Armor Crewman).

4.  On 2 October 1962, a special court-martial (SPCM) convicted the
applicant of leaving his post before he was properly relieved from sentinel
duty.  He was sentenced to confinement at hard labor for 6 months
(suspended for 6 months), a forfeiture of $25.00 pay per month for 6
months, and to reduction from pay grade E-2 to pay grade E-1.

5.  In December 1962, the applicant was charged with a larceny offense.  On
3 January 1963, the unexecuted portion of the approved sentence to
confinement at hard labor for 6 months was vacated.
6.  On 5 February 1963, a summary court-martial convicted the applicant of
unlawfully receiving US currency of about $40.00, property of another
Soldier, on 31 December 1963.  He was sentenced to confinement at hard
labor for 1 month, and to a forfeiture of $28.00 pay for 1 month.

7.  The available evidence shows that both the applicant's conduct and
efficiency ratings were unsatisfactory while he was confined at Fort Riley,
Kansas.

8.  On 19 February 1963, the applicant underwent a separation medical
examination that determined he was qualified for separation.

9.  On 18 March 1963, the unexecuted portion of approved sentence to
confinement at hard labor for 6 months was remitted effective the date of
the applicant's discharge under the provisions of Army Regulation 635-208.

10.  The applicant's records do not contain all the facts and circumstances
surrounding the discharge process.  However, his record contains a properly
constituted DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge) that was prepared at the time of separation and
authenticated by the applicant.  The DD Form 214 shows that, on 25 March
1963, the applicant was separated under the provisions of Army Regulation
635-208, for unfitness with a UD.  He had completed 1 year, 5 months and 23
days of active military service.  He also had 82 days of lost time due to
being in military confinement.  He was separated in pay grade E-1, and the
highest pay grade that he achieved was pay grade E-3.

11.  On 6 February 1978, the applicant enlisted in the USAR with a waiver.
The available record contains no further evidence about this service.

12.  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.

13.  Army Regulation 635-208, in effect at the time set forth the basic
authority for administrative separation for unfitness (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, a UD was normally issued.

DISCUSSION AND CONCLUSIONS:

1.  Although some of the facts and circumstances surrounding the
applicant's discharge process are missing, an available DD Form 214 shows
that the applicant was separated under the provisions of Army Regulation
635-208, for unfitness.  The Board presumes regularity in the discharge
process.  He has provided no evidence that would indicate the contrary.

2.  The applicant's entire record of service was taken into consideration
and it was determined that he has provided no evidence to establish a basis
for the upgrade of his discharge.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 March 1963; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
24 March 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

___fe___  __mkp___  __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.



                                  Fred Eichorn
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001923                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050303                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19630325                                |
|DISCHARGE AUTHORITY     |AR635-208                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.5000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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