RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 March 2005
      DOCKET NUMBER:  AR20040003097


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |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, in effect, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, he was surprised he received an UD.
He claims that some of the reports used against him were false and that he
was never given a chance to respond.  He further states that he submitted a
request to upgrade his discharge in 1980 and was told he would hear
something in four months.  However, it’s been 24 years and he still has
never been informed of the outcome of his case.  He requests to be informed
of what happened to his request.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 October 1960.  The application submitted in this case
is dated
15 June 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’s record shows that he enlisted in the Regular Army and
entered active duty on 15 September 1959.  He was trained in and awarded
military occupational specialty (MOS) 640.00 (Light Vehicle Driver).

4.  The applicant’s Service Record (DA Form 24) shows he was promoted to
private first class (PFC) on 1 September 1960 and that this is the highest
rank he attained while serving on active duty.  It further shows that he
was reduced to private one (PV1) on 23 September 1960, as a result of a
special court-martial conviction and sentence.

5.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.

6.  The applicant’s disciplinary history includes his conviction of being
absent without leave (AWOL) for five days by a summary court-martial on 27
April 1960; and his conviction of misappropriating a government vehicle,
absenting himself from his unit and damaging a government vehicle by a
special court-martial on 23 September 1960.

7.  On 26 September 1960, the applicant’s unit commander submitted a
recommendation that the applicant be separated under the provisions of Army
Regulation 635-208, by reason of unfitness (frequent incidents of
discreditable service).  The unit commander cited the applicant’s record of
court-martial convictions, along with his poor attitude and less than
adequate performance of duty as the reasons for recommending his
separation.

8.  The applicant was counseled and advised of the basis for the
contemplated separation action and of his right to be represented by
counsel at a hearing.  He waived his right to have his case considered by a
board of officers and he elected not to submit a statement in his own
behalf.

9.  The separation authority approved the applicant’s separation and
directed he receive an UD.  On 28 October 1960, the applicant was
discharged accordingly.  The separation document (DD Form 214) he was
issued confirms he completed 1 year, 1 month and 7 days of creditable
active military service and accrued
7 days of time lost due to AWOL.

10.  On 16 November 1981, The Adjutant General of the Army published a
letter informing the applicant that the Army Discharge Review Board (ADRB),
after careful consideration of his military records and all other available
evidence, determined he had been properly discharged and that his request
for a change in the type and nature of his discharge was denied.

11.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  It provided for the
separation of members for unfitness based on frequent incidents of
discreditable service.  An UD was normally considered appropriate.

12.  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 Board 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’s request for an upgrade of his UD was carefully
considered.  However, there were no mitigating factors presented that
warrant an upgrade of his discharge at this time.

2.  The evidence of record further confirms the applicant’s separation
processing was accomplished in accordance with the applicable regulation.
All requirements of law and regulation were met and the rights of the
applicant were fully protected throughout the separation process.  Further,
the applicant’s UD accurately reflects his overall record of
undistinguished service.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

4.  The applicant is also advised that the ADRB considered his case and
after reviewing the evidence of record and the independent evidence he
provided, determined that his discharge was proper and equitable.  As a
result, the ADRB denied his request for an upgrade of his discharge.  The
Adjutant General of the Army notified the applicant of the ADRB results in
a 16 November 1981 letter.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 16 November 1981.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 15 November 1984.  However, he 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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJW_  __JTM___  ___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.




            ____Raymond J. Wagner  _
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003097                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/15                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1960/10/28                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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