RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 March 2005
      DOCKET NUMBER:  AR20040003893


      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. 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, in effect, that his character of service be
changed on his DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge).

2.  The applicant further requests that he appear before the Army Board for
Correction of Military Records (ABCMR) to discuss his case.

3.  The applicant provides a DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 16 February 1962.  The application submitted in this case is
dated 23 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 ABCMR
to excuse failure to file within the 3-year statute of limitations 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 enlisted in the Regular Army on 5 June 1959 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 112.17 (Heavy Weapons
Infantryman).

4.  On 11 May 1960, the applicant was convicted by a summary court-martial
of disobeying a lawful order.  He was sentenced to perform 14 days hard
labor without confinement, to be reduced to private/pay grade E-1, and to
forfeit $50.00 for one month.

5.  A DD Form 789 (Unit Punishment Record) shows that on 1 June 1961 and
11 October 1961 the applicant accepted nonjudicial punishment (NJP) under
Article 15, Uniform Code of Military Justice (UCMJ) for misconduct.

6.  On 21 November 1961, the applicant was convicted by a summary court-
martial of sleeping on his post.  He was sentenced to perform 30 days hard
labor without confinement, to be reduced to private/pay grade E-1, and to
forfeit $43.00 for three months.

7.  On 9 January 1962, the applicant underwent a psychiatric examination
and was diagnosed as not being addicted to narcotic drugs nor required
hospitalization.  The psychiatrist stated that the applicant admitted to
smoking heroin, once or twice weekly for six months and has not experienced
any withdrawal symptoms.  The psychiatrist opined that the applicant was
mentally responsible, able to distinguish right from wrong and to adhere to
the right.

8.  On 11 January 1962, the applicant’s commander signed an elimination
packet on the applicant for separation under the provisions of Army
Regulation 635-208 (Personnel Separations) for unfitness.  The reason cited
by the commander was the applicant’s use of narcotics, dereliction of duty,
and misconduct.

9.  On 16 January 1962, the applicant was advised by consulting counsel of
the basis for the contemplated separation action.  The applicant was
advised of the impact of the discharge action.  The applicant signed a
statement indicating that he was advised he was being recommended for
discharge under the provisions of Army Regulation 635-208.  The applicant
declined counsel, waived his right to be heard by a board of officers, and
declined to submit a statement on his own behalf.

10.  On 25 January 1962, the appropriate authority approved the
recommendation and directed the applicant receive an undesirable discharge.
 He had completed 2 years, 8 months, and 12 days of creditable active
service and had no lost time.

11.  On 16 February 1962, the applicant was separated under the provisions
of Army Regulation 635-208.  His DD Form 214 shows in Item 13 (Character of
Service) the entry "Under Other Than Honorable Conditions."

12.  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.  At the time, an
undesirable discharge was normally issued.

13.  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.

14.  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.

15.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph
2-11 of this regulation states that applicants do not have a right to a
hearing before the ABCMR.  The regulation provides that the Director of the
ABCMR or the ABCMR may grant a formal hearing before which the applicant,
counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his character of service be changed on his
DD Form 214.  The applicant's records show that he received two summary
courts-martial and two Article 15s and separated from the service for use
of narcotics, dereliction of duty, and misconduct.  Based on these facts,
the applicant’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 or general discharge.

2.  Although the applicant requested a personnel appearance before the
ABCMR, there is no statutory right for a formal hearing.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 February 1962; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 15 February 1965.  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.




                                  ___ Mr. Fred Eichorn____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003893                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |3 March 2005                            |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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