RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 March 2005
      DOCKET NUMBER:  AR20040004439


      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. John Slone                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 undesirable discharge be
upgraded.

2.  The applicant states, in effect, that he and his company commander did
not get along.  The applicant further stated that he asked for a transfer
and that his commander stated that he was going to run him out of the Army.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 May 1963.  The application submitted in this case is dated 6
July 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 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 29 September 1961 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 410.00 (Ammunition Helper).

4.  On 25 June 1962, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for failure to
repair.

5.  On 6 July 1962, the applicant accepted NJP under Article 15, UCMJ for
failure to obey a lawful order.

6.  On 17 October 1962, the applicant accepted NJP under Article 15, UCMJ
for failure to obey a lawful order.

7.  On 14 November 1962, the applicant was convicted by a special court-
martial of wrongful possession, with intent to deceive, of an illegal pass.
 He was sentenced to perform 2 months confinement hard at labor and to be
reduced to private/pay grade E-1.

8.  On 19 January 1963, the applicant accepted NJP under Article 15, UCMJ
for being drunk in quarters.

9.  On 4 February 1963, the applicant accepted NJP under Article 15, UCMJ
for failure to obey a lawful order of the commanding officer.

10.  On 16 February 1963, the applicant accepted NJP under Article 15, UCMJ
for failure to obey a lawful order.

11.  On 23 February 1963, the applicant was convicted by a special court-
martial of being absent without leave for the period 10 February 1963
through
14 February 1963.  He was sentenced to perform two months of confinement at
hard labor, to be reduced to private/pay grade E-1, and to forfeit $50.00
for one month.

12.  On 9 March 1963, the applicant’s commander submitted a request to
discharge the applicant under the provisions of Army Regulation 635-208.
The commander based his recommendation on the fact that the applicant's
performance and conduct both on and off duty were below those standards
desired of military personnel.

13.  On 11 March 1963, the applicant was advised of his rights and the
effect of a waiver of those rights by his company commander.  The applicant
was also advised of the basis for his separation under the provisions of
Army Regulation 635-208.  The applicant indicated that he declined the
opportunity of requesting military counsel; that he did waive consideration
of his case by a board of officers; and that he did not desire to provide a
statement in his own behalf.

14.  On 17 April 1963, the appropriate authority approved the
recommendation to administratively separate the applicant and directed he
receive an undesirable discharge under the provisions of Army Regulation
635-208 for unfitness.  On
10 May 1963, he was separated after completing 1 year, 5 months, and 22
days of creditable active service and had 51 days of lost time due to AWOL
and confinement.

15.  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.

16.  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.

17.  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.  There is no evidence and the applicant has not provided evidence that
shows he requested a transfer or that his company commander threatened to
run him out of the Army.  Therefore, there is no basis for this argument.
Evidence further shows that when he was recommended for administrative
separation he declined military counsel; waived consideration by a board of
officers; and that he elected not to provide a statement in his own behalf
prior to his discharge from the service.

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

3.  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
applicant were fully protected throughout the separation process.

4.  The applicant's records show that he received two special courts-
martial and six Article 15s and separated from the service for unfitness.
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.





5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 May 1963; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 9 May 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

__JS____  __LE____  __CD___  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. John Slone___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004439                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |10 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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