RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2005
      DOCKET NUMBER:  AR20040008290


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McCants              |     |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 was home on leave in Florida
when he decided to go absent without leave (AWOL) for the period 13 August
1959 through 5 September 1959, totaling 23 days.  He continues that on 5
September 1959, he turned himself in at MacDill Air Force Base in Tampa and
was then taken to Fort McPherson, Georgia.  He further states that at that
base, he was given a direct order to return to his unit in Bindlach,
Germany.

3.  The applicant continued that two military police escorted him from Fort
McPherson to Fort Dix, New Jersey so they could place him on a plane that
would take him back to Germany.  He further stated that one night while en
route to Fort Dix, one of the military police [name omitted] was a
homosexual and sexually assaulted him while the other military police did
absolutely nothing.

4.  The applicant states that he never mentioned the incident for fear of
his life and decided he wanted to be discharged.  He continued that during
his court-martial, he requested to be discharged; however, it was denied.
He further states that on 2 December 1959, he decided to go AWOL for one
day in hopes to be discharged.

5.  The applicant continues that at his third court-martial for AWOL in
February 1960, he informed the Army officials that he would continue to go
AWOL until they discharged him from the Army.  He contends that the Army
officials finally decided to discharge him and issued him an undesirable
discharge.  The applicant mentions that he regrets not informing his
company commander of his reasons for going AWOL and his desire to be
discharged from the Army.

6.  The applicant further stated that he was bitter and angry and wanted to
get even, so he decided to never file his federal income tax and didn't for
44 years.  He continued that in 2004, he finally filed his taxes and
registered to vote which made him feel good about himself.  The applicant
concluded that prior to his AWOLs, his military rating was "excellent" and
since his discharge, he never had a felony charge or spent a night in jail.

7.  The applicant provides an undated four page self-authored statement
which is cited above.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 April 1960, the date of his separation from active duty.
The application submitted in this case is dated 20 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 enlisted in the Army on 15 August 1958 for a period of
three years.  After completion of basic and advanced individual training,
he was awarded military occupational specialty 111.00 (Light Weapons
Infantryman).  On 8 April 1959, he was assigned to Company A, 1st Battalion
of the 2nd Armored Calvary in Germany for duty.

4.  Section 4 (Chronological Record of Military Service) of the applicant's
DA Form 24 (Service Record) shows that his conduct and efficiency ratings
were "excellent" for the period 21 August 1958 through 18 February 1959.
For the period 8 April 1959 through 17 April 1960, his conduct and
efficiency ratings were "Unsatisfactory."

5.  Section 6 (Time Lost under Sec 6(a) APP 2b MCM 51 and Subsequent to
Normal Date ETS) of the applicant's DA Form 24 contain entries that show he
was AWOL from 13 August 1959 through 4 September 1959 (23 days), was in
confinement for the period 10 September 1959 through 6 October 1959
(27 days), and AWOL on 2 February 1960 (1 day).

6.  Section 10 (Remarks) of the applicant's DA Form 24 contains the
following entry:  "AWOL to surr mil auth Tampa Fla 5Sep59 to trfd Ft
McPherson Ga 9Sep59" [AWOL to surrendered to military authorities in Tampa,
Florida on 5 September 1959 to transferred to Ft McPherson, Georgia on 9
September 1959].

7.  The applicant's service records contain a DA Form 26 (Record of Court
Martial Conviction), which shows that he was convicted by one special court-
martial and two summary courts-martial.  The first entry shows Special
Court-Martial Number 26, which was adjudicated on 20 October 1959 and
approved on 23 October 1959.  The applicant was charged with AWOL for the
period 13 August 1959 through 5 September 1959.  His punishment consisted
of hard labor for a period of three months and reduction to the rank of
recruit/pay grade E-1.  This entry was certified by a chief warrant officer
three from Headquarters, 1st Battalion of the 2nd Armored Calvary.

8.  The second entry on the DA Form 26 shows Summary Court-Martial Number
69, which was adjudicated on 11 December 1959 and approved on 12 December
1959.  The applicant was charged with AWOL on 2 December 1959.  His
punishment consisted of forfeiture of $30.00 for one month and 30 days
restriction to the Christensen Barracks, Bindlach, Germany.  This entry was
certified by a chief warrant officer three from Headquarters, 1st Battalion
of the 2nd Armored Calvary.

9.  The third entry on the DA Form 26 shows a Summary Court-Martial Number
16, which was adjudicated on 12 February 1960 and approved on 13 February
1960.  The applicant was charged for AWOL from 2 February 1960 through
3 February 1960.  His punishment consisted of reduction to the rank of
recruit/pay grade E-1, and 45 days of hard labor.  This entry was certified
by a chief warrant officer three from Headquarters, 1st Battalion of the
2nd Armored Calvary.

10.  The applicant's discharge processing documents were not available in
his military service records.

11.  The applicant's DD Form 214 shows that he was discharged on 29 April
1960, under the provisions of Army Regulation 635-208, by reason of
unfitness, due to frequent incidents of a discreditable nature, and
furnished an Undesirable Discharge Certificate.  He had served 1 year,
6 months and 25 days of active Federal service with 51 days of lost time
due to AWOL and confinement.  This document was authenticated in the
applicant's own hand.

12.  There is no evidence in the available records which show that the
applicant applied to the Army Discharge Review Board (ADRB) for an upgrade
of his discharge within that board’s 15-year statute of limitation.

13.  Army Regulation 635-208 (Personnel Separations – Discharge
(Unfitness)), in effect at the time, set forth the basic authority for the
separation of enlisted personnel.  Paragraphs 3 and 3a 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.  An undesirable discharge was normally considered
appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), 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.

15.  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 contends that his undesirable discharge should be
upgraded.

2.  In the absence of evidence to the contrary, it is presumed that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, it is
determined that the type of discharge and the reason for discharge are
appropriate considering all the facts of the case.

3.  After a review of the applicant’s record of service, it is evident that
his quality of service did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, he is not entitled to
an honorable discharge.

4.  The applicant’s record of service that includes one special court-
martial, two summary courts-martial, and 51 days of lost time and
confinement also is not satisfactory service.  Therefore, the applicant is
not entitled to a general discharge.

5.  The applicant contends that his reason for going AWOL twice in hope of
being discharged was due to him being sexually assaulted by a
noncommissioned officer.  Evidence shows that the applicant did go AWOL a
second and third time; however, there is no evidence that shows that his
reason for AWOL was due to the sexual assault and the applicant has not
provided any evidence that supports this claim.  Therefore, this contention
is not sufficiently mitigating to warrant relief.

6.  The applicant contends that his conduct and efficiency ratings were
excellent prior to him going AWOL.  Evidence does show that his ratings for
about six months prior to his misconduct were excellent; however, the
seriousness of his offenses and his overall quality of his service
overshadows that short period of good service.  Therefore, this contention
is not sufficiently mitigating to warrant an upgrade of his discharge.

7.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 April 1960; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 28 April 1963.  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

___jm___  ___wdp__  ___rd___  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.




                                  _____William D. Powers_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008290                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/08/02                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1960/04/29                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Frequent incidents of discreditable     |
|                        |nature                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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