RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 June 2005
      DOCKET NUMBER:  AR20040007316


      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. Edmund P. Mercanti            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Melinda M. Darby              |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughnessy Jr.   |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states that he was 17 when he enlisted into the service
and had a hard time leaving his father.  He adds that “In July 1958, I
received word from a family member that that my father was dying of cancer.
 I struggled with my feelings and tried not to let it bother me since I had
a duty to the Army.  I had many sleepless nights and the love of my father
was much stronger than the duty to the Army.  I had to be with my father,
so I left Ft. Dix without proper authorization to go home”.  The applicant
continues that he served his time in the stockade and was released from
confinement early due to good behavior.  He was then assigned overseas and
he performed his duties honorably and to the best of his ability for
2 years following his confinement.  The applicant believes that the Army
totally disregarded his 2 years of honorable service, performed after his
incarceration, when it characterized his service.

3.  The applicant provides:

      a. a copy of his DD Form 214, (Armed Forces Of The United States
Report Of Transfer Or Discharge), with separation date of 30 January 1961;

      b. VA Form 21-22 (Appointment Of Veterans Service Organization As
Claimant’s Representative), dated 27 August 2004;

      c. a letter from his wife who relates how the applicant came into her
life when she had two children from another man.  The applicant stopped
drinking to help provide for her and her children, and always provided for
them throughout times of employment and unemployment;

      d. a letter from the applicant’s employer, dated 13 August 2004;

      e. a letter of congratulation, dated 17 November 2001;

      f. a certificate of completion, dated 23 March 2001;

      g. a certificate of attendance, dated 20 October 2001;

      h. a certificate of achievement, dated 1 June 1998;

      i. two statements of character reference, stating that the applicant
is a dedicated and honest person, dated 5 August 2005 and 24 July 2004;

      j. a letter from Amsterdam Moose Lodge, stating that the applicant is
a good standing member; undated;

      k. a police clearance report, dated 20 July 2004;

      l. two guaranteed renewal promise certificates, dated 2003 and 2004;
and

      m. a copy of the summarized record of trial, dated 11 September 1958.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 January 1961.  The application submitted in this case is
dated 10 September 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 was born on 4 April 1940.  At age 17, with parental
consent, the applicant enlisted on 14 March 1958 for a period of 3 years.
He was awarded the military occupational specialty of light weapons
infantryman and was promoted to pay grade E-3.

4.  On 11 September 1958, the applicant was convicted by a special court-
martial for being absent without leave (AWOL) from 4 to 31 August 1958.
The convening authority approved the sentence of a forfeiture of $50.00 a
month for 6 months, and 6 months confinement at hard labor.  On 18 November
1958, the unexecuted portion of the sentence to confinement at hard labor
was suspended.

5.  On 17 March 1960, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ), for breaking
restriction.

6.  On 4 May 1960, the applicant’s commander recommended that the applicant
be barred from reenlistment due to habitual minor misconduct.

7.  The bar to reenlistment was approved on 9 June 1960.

8.  On 10 June 1960, the applicant was convicted by a special court-martial
for being disrespectful in language towards his superior noncommissioned
officer.

9.  On 16 June 1960, the applicant’s commander recommended that he be
discharged due to unfitness.

10.  On 16 July 1960, the appropriate authority disapproved the
recommendation for discharge and directed that the applicant be reassigned
to another command.

11.  On 27 October 1960, the applicant again accepted NJP for being AWOL
from reveille formation.

12.  On 7 November 1960, the applicant was given a psychiatric evaluation
by a Medical Corps officer.  That officer found:

      a. the applicant had a passive-aggressive reaction;

      b. the applicant’s history showed a disrupted family background and
during his developmental period there was marked economic and cultural
deprivation and locational instability.  The applicant was involved in two
events of explosive reaction to reprimands by troop leaders.  The threat of
administrative separation appeared to have had a reformative effect on the
applicant’s attitudes; and

      c. his mental status showed no defect of orientation, intelligence,
or judgment.  There was no evidence of delusions, hallucinations or other
symptoms of psychosis.  Excessive drinking was a symptom of his immaturity
and is not amenable to psychiatric treatment.

13.  The examiner recommended retention in the service on probation and a
reevaluation in 30 days.

14.  On 28 November 1960, the applicant was convicted by a summary court-
martial for disobeying a lawful order and being disrespectful in language
toward his superior non-commissioned officer (NCO).

15.  On 5 December 1960, the applicant’s commander recommended that the
applicant be eliminated from the service due to unfitness.

16.  The applicant acknowledged that he had been notified of his
commander’s recommendation and he waived counsel and a hearing by a Board
of officers, and he declined the opportunity to submit a statement in his
own behalf.

17.  The commander’s recommendation included statements from five NCOs from
the applicant’s unit that attested to the applicant’s disregard for all
authority and discipline.  The NCOs further stated that the applicant
lacked any military bearing and appearance, greatly detested any kind of
authority, showed no motivation whatsoever to become a satisfactory
Soldier, and recommended that he be discharged due to unfitness.

18.  On 12 January 1961, the appropriate authority approved the
recommendation for discharge due to unfitness and directed the applicant be
issued an Undesirable Discharge Certificate.

19.  On 28 January 1961, the applicant underwent a medical examination and
was cleared for administrative separation.

20.  On 30 January 1961, the applicant was given an undesirable discharge
under the provisions of AR 635-208, for unfitness.  He had served 2 years
and 7 months of total active service and had 109 days lost time.

21.  There is no indication in the available records which shows the
applicant applied to the Army Discharge Review Board for a discharge
upgrade within its 15 year statute of limitations.

22.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  This 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.  An undesirable discharge was normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant did, in fact, serve two years after he was released
from incarceration, it was not honorable service.

2.  After the applicant’s release from confinement, his NCO’s stated that
the applicant lacked any military bearing and appearance, greatly detested
any kind of authority, and showed no motivation whatsoever to become a
satisfactory Soldier.  The applicant also accepted one NJP, was convicted
by both a summary and special court-martial, was barred from reenlistment
and was given a rehabilitative transfer after his release from confinement.

3.  The applicant’s post incarceration record is sufficient, in and of
itself, to warrant an undesirable discharge.  It is noted that the
applicant was given at least two opportunities to rehabilitate himself and
serve honorably.  He was not sentenced to a punitive discharge by his court-
martial, and he was given a rehabilitative transfer when he was initially
considered for discharge.  As such, there is no error or injustice in the
applicant’s characterization of service.

4.  The applicant’s post-service conduct has been carefully considered.
Without question the applicant’s accomplishments after his discharge are
commendable.  Unfortunately, these accomplishments are not sufficiently
mitigating to warrant upgrading a discharge which was based on a record of
repeated misconduct.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 January 1961; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         29 January 1964.  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

___YM __  __TEO  _  __MMD__  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.




                                   ____Melinda M. Darby ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007316                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050630                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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