RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          30 August 2005
      DOCKET NUMBER:  AR20040010498


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 undesirable discharge be upgraded to
honorable.

2.  The applicant states that he suffered from an undiagnosed mental
disorder at the time that led him to make some unwise choices while he was
in the military.  He goes on to state that he is currently under a doctor’s
care and is taking medication for his mental disabilities.  He also states
that he loves his country and needs an honorable discharge.

3.  The applicant provides a letter from a psychiatrist in Massachusetts
dated 2 September 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 May 1963.  The application submitted in this case is dated 8
October 2004 and was received on 1 December 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.  He was born on 20 July 1944 and enlisted with parental consent at
Boston Army Base on 21 July 1961 for a period of 3 years and training in
the Administration Career Management Field.

4.  He underwent his training at Fort Dix, New Jersey, and was transferred
to Fort Eustis, Virginia, for duty as a clerk typist on 9 December 1961.
He was advanced to the rank of private first class on 1 May 1962.

5.  Although not fully explained in the available records, the applicant
went absent without leave (AWOL) from 6 August to 7 August 1962 and it
appears that he was reduced to the pay grade of E-2 on 9 August 1962.

6.  On 7 September 1962, he was convicted by a summary court-martial of
being AWOL from 23 August to 5 September 1962.  He was sentenced to be
reduced to the pay grade of E-1 and a forfeiture of pay.

7.  On 14 January 1963, nonjudicial punishment (NJP) was imposed against
him for failure to go to his place of duty.  His punishment consisted of
restriction for 14 days.

8.  On 15 January 1963, NJP was imposed against him for being absent from
his place of duty from 14 January to 15 January 1963.  His punishment
consisted of extra duty for 14 days.

9.  On 21 March 1963, NJP was imposed against him for being absent from his
place of duty.  His sentence consisted of a reduction to the pay grade of E-
2 and restriction.

10.  On 22 March 1963, the applicant was arrested at Fort Eustis by civil
authorities and charged with burglary and grand larceny.  He was confined
in the Newport News Jail and held in lieu of $3,000.00 bond.

11.  On 26 March 1963, the applicant’s commander initiated action to
convene a board of officers to determine if the applicant should be
separated from the service under the provisions of Army Regulation 635-208,
for unfitness, due to his frequent involvement in incidents of a
discreditable nature with civil/military authorities.  He indicated that
the applicant had been rehabilitatively transferred several times during
his assignment to Fort Eustis to no avail.  His records indicate that he
served in three different units within a 12-month period.

12.  The applicant underwent a mental status evaluation on 4 April 1963 and
the examining psychiatrist opined that the applicant had no mental disorder
of sufficient degree to warrant medical separation, that he was mentally
responsible, both to distinguish right from wrong and to adhere to the
right.  He further opined that in his psychiatric judgment at that time,
the applicant should be separated from the service as expeditiously as
possible and that separation would best serve the Army and the applicant.

13.  The applicant acknowledged that he had been advised of his rights and
that military counsel had been made available to him.  He also elected to
waive his rights to appear before a board of officers and to submit
matters/statements in his own behalf.

14.  On 2 May 1963, the appropriate authority (a major general) approved
the recommendation and directed that he be furnished an Undesirable
Discharge Certificate.

15.  On 7 May 1963, he was convicted by civil authorities in Newport News,
Virginia, of Statutory Burglary, a felony, and was sentenced to serve 1
year on the Virginia State Farm and assessed a fine of $100.00.

16.  Accordingly, he was discharged under other than honorable conditions
on 17 May 1963, under the provisions of Army Regulation 635-208, for
unfitness due to his frequent involvement in incidents of a discreditable
nature.  He had served 1 year, 7 months and 16 days of total active service
and had 72 days of lost time due to AWOL and confinement by civil
authorities.

17.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

18.  The supporting statement submitted with the applicant’s application is
from a psychiatrist who states that the applicant is under his care for a
Bipolar Disorder and in his opinion suffers from Post-Traumatic Stress
Disorder (PTSD) from multiple traumatic events that occurred as a child.
He contends that the applicant suffered from these disorders while in the
Army and contends that a discharge upgrade would enhance his self-esteem
and overall mental health.

19.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel by reasons of unfitness
for those individuals involved in frequent incidents of a discreditable
nature with civil or military authorities, sexual perversion, drug
addiction, repeated commission of petty offenses, shirking or establishing
a pattern showing dishonorable failure to pay just debts.  An undesirable
discharge was normally considered appropriate.

20.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for separation of personnel for misconduct.  It provides, in
pertinent part, that commanders were required to initiate separation
proceedings when it was discovered that individuals were suspected of or
known to be involved with concealing information that would serve as a
disqualification at the time of enlistment, fraudulent entry, conviction by
civil court and absence without leave and Desertion.  An undesirable
discharge was normally considered appropriate.


DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no violations or procedural
errors which would tend to jeopardize his rights.

3.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

4.  Notwithstanding his current diagnoses by a psychiatrist 40+ years after
his discharge, the applicant was diagnosed by a psychiatrist at the time of
his discharge as being able to distinguish right from wrong and to be able
to adhere to the right.  The fact that the applicant was in the Army for
over a year before his misconduct began further supports the diagnoses at
the time.

5.  It is also noted that even if the current diagnoses had been known at
the time, and the applicant had not been discharged for unfitness, the
applicant’s commander was required by the applicable regulation to initiate
separation proceedings for misconduct once he was convicted by civil
authorities.  In all likelihood, the outcome of an undesirable discharge
would have been the same, given his overall undistinguished record of
service.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 May 1963; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 16 May 1966.  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

__pms___  __ym____  __lgh___  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.



                                  Paul M. Smith
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010498                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19630517                                |
|DISCHARGE AUTHORITY     |AR635-208 . . . . .                     |
|DISCHARGE REASON        |UNFIT                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |583/A51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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