RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 August 2005
      DOCKET NUMBER:  AR20040008159


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Robert Rogers                 |     |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 bad conduct discharge (BCD) [sic] be
upgraded to a fully honorable discharge.  The applicant does not have a
BCD; he has an undesirable discharge (UD).

2.  The applicant states, in effect, that he believes he was discriminated
against and wrongfully discharged because he was black.

3.  The applicant provides no evidence in support of his case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 26 February 1958.  The application submitted in this case is
dated 16 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 limitation 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's military records are presumed lost or destroyed in the
National Personnel Records Center fire of 1973.  Information herein was
obtained from a reconstructed record which contains limited information.

4.  Prior to the period of service under review, the applicant completed an
honorable period of service in the Regular Army (RA) from 25 July 1950 to
8 August 1953.

5.  On 13 July 1955, after a break in service, the applicant reenlisted in
the RA for 3 years.  He completed the training requirements and he was
awarded military occupational specialty (MOS) 940, Food Service Helper.

6.  The applicant's records do not contain all the facts and circumstances
surrounding the discharge process.  However, his record contains a properly
constituted DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge) that was prepared at the time of separation and
authenticated by

the applicant.  This DD Form 214 shows that, on 26 February 1958, he was
separated under the provisions of Army Regulation 635-208, for unfitness
with a UD.  He had completed 2 years, 4 months and 26 days of active
military service on the enlistment under review and he had 80 days of lost
time.  He had also completed 3 years of prior active military service.

7.  The available evidence does not show the applicant has ever applied to
the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitation.

8.  Army Regulation 635-208, in effect at the time set forth the basic
authority for administrative separation for unfitness (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, a UD was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  Although the facts and circumstances surrounding the applicant's
discharge process are missing, an available DD Form 214 shows that he was
separated under the provisions of Army Regulation 635-208, for unfitness.
Therefore, he would have been afforded the option to present his case
before a board of officers.  If he chose to do so, he would have consulted
with defense counsel and counsel would have represented him or he would
have voluntarily signed a statement indicating that he did not desire legal
representation.  He would have been informed of the evidence against him.
He would have also been informed that he could receive a UD and he would
have been informed of the ramifications of receiving a UD.  The Board
presumes regularity in the discharge process.  The applicant has provided
no information that would indicate the contrary.

2.  There is nothing in the applicant’s record and he has provided nothing
that substantiates his contentions of prejudicial treatment or arbitrary or
capricious actions by his chain of command.  Therefore, he has provided no
evidence to establish a basis for the upgrade of his discharge.

3.  This agency is not an investigative agency, nor does it have the
personnel or the resources to engage in the type of research the applicant
is requesting.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 February 1958; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
25 February 1961.  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

__jev___  __rjw___  ___rr___  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.



                                  James E. Vick
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008159                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19580226                                |
|DISCHARGE AUTHORITY     |AR635-208                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.5000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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