RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040010099


      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.  David S. Griffin             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Baker                |     |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 the Army Board for Correction
of Military Records (ABCMR) affirm the upgrade of his discharge to under
honorable conditions under the Department of Defense (DOD) Special
Discharge Review Program (SDRP).

2.  The applicant states, in effect, that:

      a.  he initially received a discharge under other than honorable
conditions due to frequent incidents of a discreditable nature;

      b.  he admits he was not an outstanding Soldier and that he did have
several incidents with military authorities;

      c.  the nature of his crimes did not warrant a discharge under other
than honorable conditions and that under today's standards he would have
received a discharge under honorable conditions; and

      d.  he was a good Soldier and he should be eligible for veterans
benefits.

3.  The applicant provides copies of excerpts from his military service
records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 February 1965, the date of his discharge.  The application
submitted in this case is dated 3 November 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's military records show that he enlisted on 4 September
1963 for a period of 3 years.

4.  On 17 October 1963, the applicant was convicted by a special court-
martial (SPCM) for the theft of $17.00.
5.  The records show that the applicant successfully completed basic combat
and advanced individual training and was awarded the military occupational
specialty 140.00 (field artillery basic).

6.  The applicant accepted nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice (UCMJ), on 6 April 1964, on 29 June 1964
and on 12 August 1964.  His offenses included absence from unit, leaving
appointed place of duty without authority and failure to obey a lawful
order from a non-commissioned officer (NCO).

7.  On 12 November 1964, the applicant was convicted by a SPCM for wrongful
appropriation of a wrist watch, a value of $20.00.

8.  On 17 November 1964, the applicant received a psychiatric evaluation
from the Chief of Mental Hygiene, Mental Hygiene Consultation Service, Fort
Richardson, Alaska.

9.  The examiner diagnosed the applicant as having an emotionally unstable
personality, passive aggressive; manifested by inability to cope with
authority figures, acting out, poor judgment, and immature behavior.  The
examiner also stated that the applicant's stress was mild, predisposition -
moderate, and impairment - severe.  The examiner further determined that
the applicant's condition was not in the line of duty and existed prior to
service.

10.  The examiner found that the applicant met the physical retention
standards prescribed in Army Regulation 40-501 (Standards of Medical
Fitness).  The examiner further determined that the applicant was mentally
responsible, able to distinguish right from wrong, able to adhere to the
right, and had the mental capacity to understand and participate in
proceedings.  The examiner recommended the applicant receive an
administrative discharge under the provisions of Army Regulation 635-209
(Personnel Separations, Discharge, Unsuitability).

11.  On 23 November 1964, the applicant's commander recommended that the
applicant be eliminated from the Armed Forces under the provisions of Army
Regulation 635-208 (Personnel Separations, Discharge, Unfitness) because of
unfitness and that an Undesirable Discharge Certificate be issued to him.
The commander stated that this action was being taken because of the
applicant's frequent incidents of a discreditable nature with military
authorities.

12.  On 8 December 1964, the applicant signed a statement in which he
acknowledged that action under the provisions of Army Regulation 635-208
because of unfitness was pending in his case.  The applicant further
acknowledged that he had been advised that he may receive an undesirable
discharge.

13.  In his statement, dated 8 December 1964, the applicant requested a
board of officers to decide the merits of his case and a legally qualified
counsel be assigned by the convening authority to assist him at the Board
of Officer hearing.

14.  On 25 January 1965, the applicant appeared, with counsel, before a
board of officers convened to investigate the pertinent facts and
circumstances and determine whether or not the applicant should be
discharged from the service under the provisions of Army Regulation 635-208
for unfitness.

15.  During testimony at the Board of Officers, the applicant's commander
stated that the applicant exhibited poor performance of his assigned duties
and had shown no improvement.  The commander stated that on numerous
occasions the applicant had received orders from officers and NCOs and
failed to obey them.

16.  The DA Form 37 (Report of Proceedings of Board of Officers) shows that
the board of officers found evidence of unfitness within the meaning of
paragraph 3 of Army Regulation 635-208, which rendered retention in the
service undesirable. The board of officers recommended the applicant be
discharged from the service because of unfitness and that he be furnished
with an Undesirable Discharge Certificate.

17.  On 4 February 1965, the applicant was convicted by a summary court-
martial (SCM) for failure to obey a general regulation (having 3.2 beer in
the barracks) and leaving appointed place of duty without authority.

18.  On 12 February 1965, the appropriate authority approved the findings
and recommendations of the Board of Officers and directed that the
applicant be discharged for unfitness and furnished an Undesirable
Discharge Certificate.

19.  On 18 December 1965, the applicant was discharged from active duty
under the provisions of Army Regulation 635-208 for unfitness due to
frequent incidents of a discreditable nature with military authorities and
was issued an Undesirable Discharge Certificate.  He had completed 1 year,
2 months and 25 days of active service characterized as under other than
honorable conditions.  He had 87 days time lost.

20.  On 30 June 1977, the Army Discharge Review Board (ADRB) upgraded the
applicant's discharge to under honorable conditions (general) effective 24
May 1977 under the provisions of the SDRP.

21.  On 21 September 1978, under the provisions of Public Law 95-126, the
ADRB re-reviewed the applicant's general discharge under the new uniform
standards for discharge review and voted unanimously not to affirm the
applicant's upgraded discharge.

22.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3-year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

23.  Army Regulation 635-208, then in effect, set forth the policy for
administrative separation for unfitness (misconduct).  Paragraph 1c(1) of
the regulation provided, in pertinent part, for the separation of personnel
where there was evidence of an antisocial or amoral trend, chronic
alcoholism, criminal tendencies, drug addiction, pathological lying, or
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, an undesirable discharge was
normally issued.

24.  On 4 April 1977, the Department of Defense (DOD) directed each armed
service to conduct a review of discharges of former service members who
were discharged between 4 August 1964 and 28 March 1978, with an
undesirable or a general discharge.  This program was entitled the DOD
Special Discharge Review Program (SDRP).   The program mandated the upgrade
of individual cases in which the applicant met one of several specified
criteria and when the separation was not based on a specified compelling
reason to the contrary.  The ADRB had no discretion in such cases other
than to decide whether recharacterization to fully honorable as opposed to
a general discharge was warranted in a particular case.  An individual who
had received a punitive discharge was not eligible for consideration under
the SDRP.  Absentees who returned to military control under the program
were eligible for consideration after they were processed for separation.
Eligibility for the program was restricted to individuals discharged with
either an undesirable discharge or a general discharge between 9 August
1964 and 28 March 1973, inclusive.  Individuals could have their discharges
upgraded if they met any one of the following criteria: wounded in action;
received a military decoration other than a service medal; successfully
completed an assignment in Southeast Asia; completed alternate service;
received an honorable discharge from a previous tour of military service;
or completed alternate service or excused there from in accordance with
Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to
the contrary to deny discharge upgrade were desertion/AWOL in or from the
combat area; discharge based on a violent act of misconduct; discharge
based on cowardice or misbehavior before the enemy; or discharge based on
an act of misconduct that would be subject to criminal prosecution under
civil law.

25.  Public Law 95-126, enacted on 8 October 1978, provided generally, that
no Department of Veterans Affairs (DVA) benefits could be granted based on
any discharge upgraded under the Ford memorandum of 19 January 1977, or the
DOD Special Discharge Review Program.  It required the establishment of
uniform published standards which did not provide for automatically
granting or denying a discharge upgrade for any case or class of cases.
The services were then required to individually compare each discharge
previously upgraded under one of the special discharge review programs to
the uniform standards and to affirm only those cases where the case met
those standards.

26.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), currently in effect, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, conviction by civil authorities,
desertion, or absences without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  A discharge under other than
honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under honorable conditions
should be affirmed so that he may be eligible for veterans benefits.  He
contends that under today's standards he would have received a general
discharge.

2.  Under current standards the applicant could have been processed under
the provisions of Chapter 14 of Army Regulation 635-200.  A discharge under
other than honorable conditions is normally considered appropriate when a
member is processed under this regulation.  Therefore, the applicant's
contention about today's standards is not supported by the evidence.

3.  The applicant's administrative separation was accomplished in
compliance with applicable regulations and there is no indication of
procedural errors that would tend to jeopardize his rights.

4.  The evidence of record clearly shows that the applicant had an
extensive disciplinary record and that he exhibited a total disregard for
military authorities.
The evidence provides sufficient basis for the original characterization of
service as undesirable and the discharge on the basis of unfitness.  Not
withstanding the original determination by the ADRB, the applicant's
military records show that his service was not satisfactory and that his
general discharge should not be affirmed.

5.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for benefits.  In addition, granting veteran's
benefits is not within the purview of the ABCMR and any questions regarding
eligibility for treatment and other benefits should be addressed to the
Department of Veterans Affairs (DVA).

6.  The ABCMR does not correct records solely based on the passage of time.

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

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 21 September 1978.
 As a result, the time for the applicant to file a request for correction
of any error or injustice to this Board expired on 20 September 81.
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 file
in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___mkp__  ____reb _  ____lmb _  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.




                                  ____Margaret K. Patterson______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010099                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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