RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 May2005
      DOCKET NUMBER:  AR20040005226


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Seema E. Salter               |     |Member               |
|     |Ms. Susan A. Powers               |     |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 undesirable discharge be upgraded to
honorable.

2.  The applicant states:

      a.  He was too young for military life and the responsibilities it
demanded.

      b.  His parents urged him to join the Army at 17 years of age.  He
and his identical twin joined the Army under the buddy system.  After
completing basic and advanced individual training, they were both sent to
Korea, but placed in different companies and battalions which resulted in
each going AWOL to see the other.

      c.  He has wished many times that he could have reenlisted in the
Army and made it a career.  He adds that he is self-employed and volunteers
his time helping the American Legion veterans and their widows.

      d.  Since the military, he has found Christ and is trying to remedy
some of his errors.  He would be exceptionally proud to be able to display
an honorable discharge.

3.  The applicant provides a self-authored letter and a Certificate of
Appreciation from the American Legion.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 July 1965.  The application submitted in this case is dated
22 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 Army at the age of seventeen on 28
January 1964 for a period of 3 years.  He completed basic and advanced
individual training and was awarded the military occupational specialty
111.00 (Light Weapons Infantryman).  He served with C Company, 2nd
Battalion, 8th Cavalry Division in Korea and was discharged on 12 July
1965.

4.  On 6 August 1964, the applicant received nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ), for sitting down
on his guard post while assigned as a sentinel.  His punishment consisted
of reduction to private/pay grade E-1, forfeiture of $12, restriction for
14 days and extra duty for 14 days.

5.  On 7 November 1964, the applicant received NJP under Article 15, UCMJ,
for disobeying a lawful order to clear his weapon prior to entering a
building.  His punishment consisted of extra duty for 14 days.

6.  On 15 December 1964, the applicant was convicted by a summary court-
martial for using disrespectful language towards a noncommissioned officer
and leaving his appointed place of duty without proper authority.  His
punishment consisted of hard labor without confinement for 14 days,
restriction to the company area for 30 days, and forfeiture of $60 per
month for one month.

7.  On 16 December 1964, the applicant received NJP under Article 15, UCMJ,
for failure to go to his appointed place of duty.  His punishment consisted
of restriction to the company area for 14 days.

8.  On 9 April 1965, the applicant was convicted by a special court-martial
for attempting to steal three cartons of chewing gum and three cans of
Pepsi Cola.  His sentence consisted of reduction to private/pay grade E-1,
hard labor without confinement for two months, forfeiture of $60 per month
for one month, and restriction to the company area for two months.

9.  On 19 May 1965, the 1st Cavalry Division Psychiatrist examined the
applicant.  The medical officer diagnosed the applicant as having an anti-
social personality; however, he stated that the applicant was mentally able
to distinguish right from wrong and to adhere to the right, able to
understand board proceedings and testify in his own defense, and to be free
of physical or mental defect warranting medical separation.

10.  On 25 May 1965, the applicant received NJP under Article 15, UCMJ, for
being absent from bed check.  His punishment consisted of forfeiture of $19
for one month and extra duty for 14 days.

11.  On 27 May 1965, 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
demonstrated that he did not possess the ability to conform to minimum the
requirements of military service.  The commander further stated that the
applicant consistently failed to perform his assigned duties and was a
constant disciplinary problem to his superiors and a troublemaker with
respect to his contemporaries.

12.  On 25 May 1965, 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 military counsel, waived consideration of his
case by a board of officers, and did not desire to provide a statement in
his own behalf.

13.  The applicant also acknowledged that he understood that, if an
Undersirable Discharge Certificate were issued, he may be deprived of many
or all Army benefits; that he may be ineligible for many or all Veterans
Administration benefits; and that he may expect to encounter substantial
prejudice in civilian life because of an Under Other Than Honorable
Conditions Discharge.

14.  On 16 June 1965, 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 12 July 1965, the applicant was discharged with an
undesirable discharge and a characterization of service as under other than
honorable conditions.  He completed 1 year, 5 months, and 15 days of active
service.

15.  Item 11c (Reason and Authority) of the applicant's DD Form 214
contains the entry SPN 28B.  Army Regulation 635-5 (Separation Documents)
shows that SPN 28B is authorized for separations under the provisions of
Army Regulation 635-208 with the following associated narrative reason:
"Involved in frequent incidents of a discreditable nature with civil or
military authorities."

16.  There is no evidence the applicant applied to the Army Discharge
Review Board for upgrade of his discharge.

17.  Army Regulation 635-208, then in effect, 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.

18.  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.

19.  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.  The applicant requests that his undesirable discharge be upgraded to an
honorable discharge.  However, evidence of record shows that the applicant
was convicted by a special court-martial for attempting to steal items from
the Post Exchange.

2.  Evidence of record further shows that, when he was recommended for
administrative separation, he declined military counsel, waived
consideration of his case by a board of officers, and that he elected not
to provide statement in his own behalf prior to his discharge from the
service.

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

4.  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.

5.  The applicant contends that he was too young for military service.
Records show that the applicant was 18 years old at the time of his
discharge and there is no evidence that indicates that he was any less
mature than other Soldiers of the same age who successfully completed
military service.
6.  The applicant’s post service achievements and conduct are noteworthy.
However, good post service conduct alone is not a basis for upgrading a
discharge and, upon review, the applicant's good post service conduct is
not sufficient to mitigate his indiscipline in the Army.

7.  The applicant's records show that he was convicted by a special court-
martial, a summary court-martial, and received four Articles 15.  He had
completed 1 year, 5 months, and 15 days of creditable active service on his
3-year enlistment.  Based on the applicant’s multiple offenses, his service
did not meet the standards of satisfactory service for Army personnel.  In
the absence of a record of satisfactory service, the applicant is not
entitled to a general discharge.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 July 1965; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 11 July 1968.  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

__mhm___  __ses___  __sap___  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.



                                        Melvin H. Meyer
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040005226                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050526                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19650712                                |
|DISCHARGE AUTHORITY     |AR 35-208 .                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.5100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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