RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          1 September 2005
      DOCKET NUMBER:  AR20040009787


      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. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 discharged more that 45
years ago, and not as a result of a court-martial action.  He believes most
of the UD's that were issued during that time frame have already been
upgraded, but his has not.

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 14 March 1957.  The application submitted in this case is dated
29 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 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 (NPRC), St. Louis, Missouri fire of 1973.
 Information herein was obtained from a reconstructed record which contains
limited information.

4.  The applicant's records do not contain all the facts and circumstances
surrounding the discharge process.  However, his records contain Special
Orders Number 58, United States Army Personnel Center, Fort Jackson, South
Carolina, dated 14 March 1957, which shows he was separated under the
provisions of Army Regulation 635-208, for unfitness with a UD on that
date.

5.  On 23 June 2000, the NPRC, issued the applicant a Certification of
Military Service that shows he was a member of the United States Army
Reserve and that he served in an active duty status from 1 March 1956 until
he was separated with a UOTHC discharge on 14 March 1957.


6.  The available evidence indicates that in 1979, the applicant appealed
to the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitation and he was advised that the
evidence/information that was available was insufficient for a review of
his record.

7.  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.  A hearing by a
board of officers was required.

DISCUSSION AND CONCLUSIONS:

1.  Although, the facts and circumstances surrounding the applicant's
discharge process are missing, an available order that was the basis for
the applicant's separation shows 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.  In the absence of evidence to the
contrary, regularity is presumed in the discharge process.

2.  The US Army does not have, nor has it ever had, a policy to upgrade a
discharge based on the passage of time.  Each case is decided on its own
merits when an applicant submits a DD Form 149 (Application for Correction
of Military Record) requesting a change in discharge.  Changes may be
warranted if the Board determines that the characterization of service or
the reason(s) for discharge, or both, were improper or inequitable.  The
applicant has failed to convince the Board of either.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 March 1957; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
13 March 1960.  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

__sk____  __bje___  __rtd___  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.



                                  Stanley Kelley
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009787                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19570314                                |
|DISCHARGE AUTHORITY     |AR635-208                               |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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