RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          16 August 2005
      DOCKET NUMBER:  AR20040008869


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 a general discharge under honorable conditions or to a fully
honorable discharge.

2.  The applicant states, in effect, that he was sentenced to serve 6
months in military confinement at the United States Disciplinary Barracks
(USDB), Fort Leavenworth, Kansas, however, he served only 5 months.  He was
restored to duty and assigned to Fort Collins [sic], Colorado where members
of his chain of command threatened "to get him," because they believed he
was not fit to be in the military.  Shortly after being assigned to his
unit, the platoon sergeant gave him the weekend off and he went downtown.
Upon his return, the platoon sergeant denied giving him the weekend off and
the first sergeant said "I got you!"  He was charged with being absent
without leave (AWOL) and arrested.  His legal counselor advised him that he
could avoid spending another 6 months in military confinement, if he took a
UD.  He accepted the UD and was out of the military in a few days.  He has
worked steadily, and reared a family.  He desires for his children and for
peace of mind an upgrade of his UD and the removal of the stigma associated
with it.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 27 April 1965.  The application submitted in this case is date
stamped 18 October 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.  On 27 February 1962, the applicant enlisted in the Regular Army for 3
years and airborne training, unassigned.  He completed the required
training and he was awarded military occupational specialty (MOS) 640
(Light Vehicle Driver).  On 18 August 1962, he was assigned to Fort
Benning, Georgia for completion of airborne training.  There is no evidence
available that indicates he completed this training.
4.  On 18 October 1962, the applicant was convicted by a summary court-
martial of being AWOL from his unit at Fort Benning from 20 September to 6
October 1962.  He was sentenced to reduction from pay grade E-2 to pay
grade E-1, a forfeiture of $55.00 pay for 1 month, and to serve 30 days at
hard labor without confinement.  On 18 May 1963, he was advanced to pay
grade E-3

5.  On 4 August 1963, the applicant was convicted by special court-martial
(SPCM) of being AWOL from Fort Benning from 17 June to 10 July 1963.  His
punishment included 6 month confinement at hard labor, a forfeiture of
$55.00 pay per month for 6 months, and reduction to pay grade E-1.  He
remained in confinement from 6 August to 7 September 1963.

6.  The applicant left Fort Benning in an AWOL status from 29 December 1963
to 6 January 1964 and from 8 January to 23 March 1964 until he returned to
military control at Fort McPherson, Georgia.  On 21 April 1964, the
applicant was convicted by SPCM of these periods of AWOL.  He was sentenced
to 6 months in confinement at hard labor at the USDB, and a forfeiture of
$28.00 pay per month for 6 months.

7.  The applicant requested restoration to duty.  On 4 June 1964, at the
USDB, a classification board convened and recommended restoration to duty.
Clemency was not recommended.  On the same date, the recommendation was
approved.  The applicant remained in confinement at the USDB until 19
September 1964, and he was assigned to Fort Carson, Colorado on 16 October
1964.

8.  On 14 December 1964, nonjudicial punishment (NJP) under the provisions
of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against
the applicant for being AWOL from Fort Carson on 11 December 1964.  His
punishment included 7 days of extra duty.

9.  On 15 March 1965, the applicant was convicted by a SPCM of being AWOL
from Fort Carson from 27 February to 4 March 1965.  He was sentenced to
serve 30 days in confinement and a forfeiture of $20.00 pay per month for 1
month.

10.  On 6 April 1965, the applicant underwent a mental status evaluation.
The applicant stated that he was often late to work and that he
continuously left his place of duty AWOL to be with his wife, because he
feared she would leave him. He was diagnosed to have an emotionally
unstable personality.  He was also determined to be mentally responsible,
able to distinguish right from wrong and to adhere to the right.  The
recommendation was for separation.
11.  On 7 April 1965, the unit commander officially notified the applicant
that he was being recommended for discharge under the provisions of Army
Regulation 635-208 for unfitness.  On the same date, the applicant was
counseled and informed of the basis for the contemplated separation action
and advised of the rights available to him.  The applicant authenticated a
statement in which he declined further legal counsel, and waived both
consideration of his case by a board of officers and the right to submit a
statement in his own behalf.  He acknowledged that he understood the
ramifications of receiving a UD and that he made this election based on his
own free will and accord.

12.  On the same date the applicant's commander recommended that he be
eliminated under the provisions of Army Regulation 635-208, for unfitness
with a UD.  The commander stated that he believed it was in the best
interest of the military to waive further rehabilitation and separate the
applicant.  The commander cited the applicant's history of misconduct and
punishments as the basis for his recommendation.

13.  On 15 April 1965, the appropriate authority approved the separation
recommendation and directed the issuance of a UD.

14.  The applicant's DD Form 214 shows that, on 27 April 1965, he was
separated under the provisions of Army Regulation 635-208, for unfitness
with a UD.  He had completed 2 years, 1 month and 16 days of active
military service.  He also had 340 days of lost time due to being AWOL and
in military confinement.  Forty days were lost subsequent to his normal
expiration term of service date.


15.  The available evidence does not indicate the applicant applied to the
Army Discharge Review Board under that board's 15-year statute of
limitation.


16.  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.  A UD was considered
appropriate.


DISCUSSION AND CONCLUSIONS:

1.  Both the type of discharge directed and the reason for discharge were
appropriate considering the facts of the case.

2.  The applicant's discharge process was administratively correct and in
conformance with applicable regulations, then in effect.

3.  The available evidence shows the applicant acknowledged he accepted a
UD to avoid possible military confinement and that he understood the stigma
associated with a UD.  There is no indication that his decision was made
under coercion or duress.

4.  The available record contains no evidence and the applicant has
submitted none that demonstrates he was treated maliciously by his chain of
command.  The applicant was separated after he continuously departed from
Army standards and habitually left his place of duty AWOL over extended
periods of time.

5.  The applicant's post service achievements are noted, however, they do
not establish a basis for upgrading his UD.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 April 1965; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
26 April 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___  __jtm___  __jbg___  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                 |AR20040008869                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050816                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19650727                                |
|DISCHARGE AUTHORITY     |AR635-208                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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