RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 February 2005
      DOCKET NUMBER:  AR20040002133


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Jonathon K. Rost              |     |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 to a general or
honorable discharge.

2.  The applicant states that he has been working at Universal Studios in
California for 28 years and has been shop foreman for the last 10 years.
He has a lot of achievement certificates and also has a very outstanding
work record.  When he was in the Army, he held the rank of Specialist Four,
E-4.  He was very immature because he did not have a mother or father to
raise him.  His last year in service he got some bad advice from a couple
of corporals and sergeants.  He was scared at the court-martial and did not
give any defense.  The lieutenant who was representing him did not seem to
care.  He is sorry for what he did and regrets it every day.

3.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 September 1964.  The application submitted in this case is
dated 21 May 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.  The applicant was born on 13 September 1944.  He enlisted in the
Regular Army on 27 September 1961.  He completed basic combat training and
advanced individual training and was awarded military occupational
specialty 140.00 (Field Artillery Basic).  He was promoted to Specialist
Four, E-4 on 19 January 1963.

4.  On 15 June 1963, the applicant was convicted by a special court-martial
of attempting to steal gasoline of a value of less than $20.00.  He was
sentenced to be reduced to Private, E-2 and to forfeit $50.00 pay per month
for 4 months.

5.  On 3 August 1963, the applicant accepted non-judicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being
disrespectful in language towards his superior noncommissioned officer.

6.  On 3 April 1964, the applicant accepted NJP under Article 15, UCMJ for
absenting himself from his unit.

7.  On 15 May 1964, the applicant was convicted by a summary court-martial
of wrongfully sitting down on his post as a sentinel.  He was sentenced to
perform hard labor for 30 days, to be reduced to Private, E-1, and to
forfeit $60.00 pay for  1 month.

8.  On 26 May 1964, the applicant was convicted by a special court-martial
of being absent without leave from on or about 6:45 p.m. 15 May 1964 to on
or about 12:15 a.m. 16 May 1964 and from on or about 2:00 p.m. 16 May 1964
to on or about 3:00 a.m. 17 May 1964; of behaving himself with disrespect
towards his superior officer; of willfully disobeying a lawful command from
his superior officer; and of willfully disobeying a lawful order from his
superior noncommissioned officer.  He was sentenced to be confined at hard
labor for 6 months and to forfeit $70.00 pay per month for 6 months.

9.  On 5 June 1964, the applicant received a psychiatric evaluation.  A
review of his personal history revealed that his parents divorced when he
was 1 1/2 years old and he was raised by his father and his aunt and had a
poor relationship with his mother.  The applicant cited many incidents with
civil authorities involving theft and petty larceny and mentioned three
instances of short jail terms.  He related that he was never able to adjust
to his present unit and upon return would "probably just get into more
trouble."  No signs of organic brain disease or psychosis were found.  He
was diagnosed with dissocial personality.  He was found to be able to
distinguish right from wrong and to adhere to the right and to have the
mental capacity to understand and participate in board proceedings.

10.  On 21 August 1964, the applicant completed a separation physical and
was found qualified for separation.

11.  On an unknown date, the applicant’s commander recommended he be
separated under the provisions of Army Regulation 635-208 for unfitness.
On      10 June 1964, the applicant acknowledged that he was counseled by
his commander and notified by him that he was recommending him (the
applicant) for discharge under the provisions of Army Regulation 635-208
for unfitness.  He was fully aware of the fact that an Undesirable
Discharge Certificate could be issued to him.  He requested a hearing
before a board of officers and requested counsel to represent him.

12.  On 14 August 1964, a board of officers convened.  The applicant
elected to remain silent.  The board found evidence of unfitness due to
frequent incidents of a discreditable nature with military authorities that
rendered the applicant's retention in the service undesirable.  The board
recommended he be discharged because of unfitness with an undesirable
discharge.

13.  On 24 August 1964, the appropriate authority approved the
recommendation and directed the applicant be furnished an Undesirable
Discharge Certificate.

14.  On 19 September 1964, the applicant was discharged, in pay grade E-1,
under the provisions of Army Regulation 635-208 for unfitness, with an
undesirable discharge characterized as under other than honorable
conditions.  He had completed 2 years, 9 months, and 12 days of creditable
active service and had    72 days of lost time (AWOL and confinement).

15.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness.  The
regulation provided for the discharge of individuals by reason of unfitness
with an undesirable discharge when it had been determined that an
individual’s military record was characterized by one of more of the
following:  frequent incidents of a discreditable nature with civil or
military authorities; sexual perversion; drug addiction or the unauthorized
use or possession of habit forming narcotic drugs or marijuana; an
established pattern for shirking; or an established pattern showing
dishonorable failure to pay just debts.

16.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the Soldier’s service generally has met the standards of acceptable
conduct and performance of duty for Army personnel, or is otherwise so
meritorious that any other characterization would be clearly inappropriate.
 A general discharge is a separation from the Army under honorable
conditions.  It is issued to a Soldier whose military record is
satisfactory but not sufficiently meritorious to warrant an honorable
discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was young when he enlisted in the Regular Army; however,
he successfully completed basic combat training and advanced individual
training.  He served successfully for 15 months before his first recorded
instance of misconduct. He was aware of the Army's standards of conduct and
had shown that he could follow them.

2.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

3.  While the Board admires the success the applicant has had since his
separation from the Army, this is not sufficiently mitigating to warrant an
upgrade of his discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 September 1964; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on      18 September 1967.  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

__ym____  __rjw___  __jkr___  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.




            ___Yolanda Maldonado__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040002133                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050224                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1964/09/19                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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