RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040011266


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states that he was advised that after 40 years his
discharge would automatically be upgraded to honorable.

3.  The applicant states that during the 60’s he worked in a print shop
with his father where he came in contact with poisonous chemicals that have
killed many of his friends and have caused him to have liver damage, kidney
failure, and cancer.

4.  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
5 February 1963.  The application submitted in this case is dated 22
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 was inducted into the Army of the United States on 26
June 1962, for a period of 2 years.

4.  On 23 November 1962, he was convicted by a summary court-martial of
being absent without leave (AWOL) from 2 November 1962 to 20 November 1962.
 He was sentenced to hard labor without confinement for 45 days and a
forfeiture of pay.

5.  On 21 November 1962, the applicant was evaluated by a psychiatrist
because of his having gone AWOL and his attempted suicide.  The provisional
diagnosis was anxiety reaction to situational maladjustments.

6.  On 3 December 1962, a psychiatric certificate stated that the applicant
was diagnosed as having chronic, severe emotional instability reaction.
The psychiatrist notes that the applicant is too emotionally unstable to
become an effective Soldier and that he would continue to manipulate in
order to get out of that which displeases him if not separated from the
service.  The psychiatrist recommended separation under Army Regulation 635-
209, for unsuitablility.

7.  On 18 January 1963, the applicant acknowledged that he had been
notified by his commander that he was recommending his discharge under the
provisions or Army Regulation 635-209, for unsuitability.  The applicant
waived consideration of his case by a board of officers, waived legal
counsel and elected not to submit a statement in his own behalf.

8.  On 18 January 1963, the applicant’s commander recommended his discharge
under the provisions of Army Regulation 635-209.  The reasons for his
commander’s elimination action was the applicant’s chronic complaining of
severe headaches, being emotionally unstable, not conforming to military
order and discipline, and his extremely poor attitude.

9.  On 23 January 1963, the appropriate separation authority approved the
discharge request and directed the issuance of a general discharge.

10.  On 28 January 1963, a medical examination cleared the applicant for
separation.

11.  On 5 February 1963, the applicant was discharged under the provisions
of Army Regulation 635-209, for unsuitability.  His DD Form 214 Armed
Forces of the United States Report of Transfer or Discharge) indicates he
had 6 months and 23 days of creditable service and 18 days of lost time.

12.  Army Regulation 635-209, in effect at the time, set forth the policy
and prescribed procedures for eliminating enlisted personnel for
unsuitability.  Action was to be taken to discharge an individual for
unsuitability when, in the commander's opinion, it was clearly established
that: the individual was unlikely to develop sufficiently to participate in
further military training and/or become a satisfactory Soldier or the
individual's psychiatric or physical condition was such as to not warrant
discharge for disability.  Unsuitability included inaptitude, character and
behavior disorders, disorders of intelligence and transient personality
disorders due to acute or special stress, apathy, defective attitude, and
inability to expend effort constructively.  Evaluation by a medical officer
was required and, when psychiatric indications are involved, the medical
officer must be a psychiatrist, if one was available.  A general or
honorable discharge was considered appropriate.

13.  Army Regulation 635-200 also states that an honorable discharge is a
separation with honor.  The honorable characterization is appropriate when
the quality of the soldier’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The applicant's conviction by a summary court-martial for approximately
20 days of AWOL likely contributed to the separation authority's decision
to direct that the applicant receive a general discharge.  It is apparent
that the applicant’s separation authority determined, in spite of the
applicant’s personality disorder, that a general discharge most
appropriately characterized the applicant’s service. That determination was
well within the separation’s authority at that time.

3.  As such the Board concludes that in the absence of compelling evidence
that an error or injustice occurred in the applicant’s characterization of
service it would be inappropriate for the Board to substitute its judgment
for that of the commander on the ground at the time who acted well within
his authority.

4.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that he was advised that
his discharge would be automatically upgraded to honorable after 40 years.

5.  In order to justify correction of a military record the applicant must
show, 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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 February 1963; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
4 February 1966.  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

__JS____  __EA ___  __CK ___  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.




                                  ______ John Slone________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011266                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050915                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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