RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        07 JULY 2005
      DOCKET NUMBER:  AR20040006808


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Carol 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 that his records be corrected by upgrading his
discharge.

2.  The applicant states, in effect, that his discharge was the result of
racial prejudice, religious intolerance, and excessive punishment.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 27 July 1967.  The application submitted in this case is dated
10 August 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 the Regular Army on 7 October 1964, for a period
of
3 years.  He successfully completed basic combat training and advanced
individual training at Fort Jackson, South Carolina.

4.  On 15 July 1965, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice (UCMJ)
for disobeying a lawful order by a superior noncommissioned officer.  His
punishment was restriction, extra duty, and a forfeiture of pay.

5.  On 28 July 1965, he accepted NJP under the provisions of Article 15,
UCMJ for failure to go at the time prescribed to his appointed place of
duty.  His punishment was restriction and extra duty.

6.  On 6 July 1966, he accepted NJP under the provisions of Article 15,
UCMJ for
being absent without leave (AWOL) from 2 June 1966 to 3 June 1966.  His
punishment was restriction.

7.  On 21 November 1966, he accepted NJP under the provisions of Article
15, UCMJ for stealing a pair of black leather gloves, the property of
another Soldier.  His punishment was a forfeiture of pay.

8.  On 27 February 1967, he accepted NJP under the provisions of Article
15, UCMJ for being AWOL on 26 February 1967.  His punishment was
restriction, extra duty, reduction, and a forfeiture of pay.

9.  On 17 April 1967, a medical examination cleared the applicant for
separation.

10.  On 29 April 1967, he was convicted by a special court-martial of
disobeying a lawful order of a superior commissioned officer.  He was
sentenced to confinement at hard labor for 4 months, forfeiture of pay for
4 months, and reduction to Private E-1.

11.  On 1 May 1967, the applicant’s unit commander recommended that he be
required to appear before a board of officers convened under the provisions
of Army Regulation 635-212, for the purpose of determining whether he
should be discharged prior to the expiration of his term of service.
Elimination action was being recommended because of the applicant’s
frequent incidents of petty offenses and habitual shirking.

12.  On 8 May 1967, a psychiatric evaluation cleared the applicant for
separation.

13.  On 18 May 1967, after consulting with legal counsel, the applicant
acknowledged that he had been advised by counsel of the basis for his
commander’s action to separate him under the provisions of Army Regulation
635-212.  He waived consideration of his case by a board of officers,
waived legal representation, and elected not to submit a statement in his
own behalf.  He acknowledged that he understood that if he was issued an
under other than honorable conditions characterization he may encounter
substantial prejudice in civilian life, and would be ineligible for many or
all benefits as a veteran under both Federal and state laws.  In his
statement he states that having been before two courts-martial he had no
desire to appear before a board of officers again, and did not feel that
with his record he could continue to serve in the Army.

14.  On 10 June 1967, the applicant’s intermediate commander recommended
his separation for unfitness, under the provisions of Army Regulation 635-
212.

15.  On 17 June 1967, the applicant’s senior commander recommended approval
of his discharge.

16.  On 6 July 1967, the appropriate separation authority approved the
applicant’s discharge under the provisions of Army Regulation 635-212,
paragraph 6a(1), and directed his reduction to the lowest enlisted grade
and the issuance of an under other than honorable conditions
characterization.

17.  On 27 July 1967, the applicant was discharged under the provisions of
Army Regulation 635-212, paragraph 6a, with an undesirable discharge,
characterized as under other than honorable conditions. His DD Form 214
(Armed Forces of the United States Report of Transfer or Discharge)
indicates he had 2 years, 8 months, and 12 days of creditable service, and
8 days of lost time.

18.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 6a(1) of the
regulation provided, in pertinent part, that members involved in frequent
incidents of a discreditable nature with civil or military authorities were
subject to separation for unfitness.  A characterization of under other
than honorable conditions was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time with no indication of procedural errors
which would tend to jeopardize his rights.
.
2.  The type of discharge directed and the reasons therefore were
appropriate considering the facts of the case.

3.  There is no evidence in the available records to demonstrate that the
applicant was the victim of racial prejudice or religious intolerance as he
contends.

4.  In view of the applicant's numerous acts of indiscipline, it does not
appear that he received excessive punishments or that his discharge was too
severe.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 July 1967; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
26 July 1970.  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

___MM__  ___EA  __  ___CK__  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 Meyer________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006808                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]