RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 August 2005
      DOCKET NUMBER:  AR20040011403


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann             |     |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, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he was very young and had little
guidance during his adolescence.  He also claims that he received minimal
behavioral training while in the Army, and that little effort was made to
change him.  He finally claims that his behavior did not warrant the
punishment he received.

3.  In his application, the applicant claims he has already submitted
letters from people who have known him over a long period of time, who
attested to the fact he has been a very good and respectable person since
he left the service.  The character reference letters he refers to were not
included with the application or the Official Military Personnel File
(OMPF) submitted for the Board’s review.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 30 July 1962.  The application submitted in this case is dated
9 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 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 record shows that he enlisted in the Regular Army and
entered active duty on 22 March 1960.  At the time of his enlistment, he
was
17 years old.  He completed basic combat training at Fort Ord, California
and advanced individual training at Fort Sill, Oklahoma.  Upon completion
of AIT, he was awarded military occupational specialty (MOS) 140.00 (Field
Artillery).
4.  The applicant’s record further shows he was assigned to Germany and
arrived there for duty on 5 September 1960.  His Service Record (DA Form
24) shows, in Section I (Appointments, Promotions, Reductions), that he was
promoted to the rank of private first class (PFC) on 27 November 1960, and
that this was the highest rank he attained while serving on active duty.
It also shows that he was reduced in rank on three separate occasions with
the final reduction to private/E-1 (PV1) occurring on 18 July 1962.

5.  The applicant’s disciplinary history includes a special court-martial
(SPCM) conviction, a summary court-martial (SCM) conviction, and his
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on six separate
occasions.

6.  On 7 October 1961, a SPCM convicted the applicant of failing the lawful
order of a superior non-commissioned officer and of breaking restriction.
The resultant sentence included confinement at hard labor for six months
(suspended), forfeiture of $50.00 per month for six months and reduction to
PV1.

7.  On 7 April 1962, a SCM convicted the applicant of being disrespectful
in language toward a superior non-commissioned officer.  The resultant
sentence included confinement at hard labor for one month (suspended) and a
forfeiture of $55.00.

8.  The applicant accepted NJP on six separate occasions between 6
September 1960 and 13 December 1961, for a myriad of disciplinary
infraction that included failure to repair for reveille formation, failure
to report for extra duty, being off post without a pass, not being present
for bed check, uniform violations, and being absent without leave (AWOL).

9.  On 22 May 1962, the applicant’s commander recommended he appear before
a board of officers to be considered for separation under the provisions of

Army Regulation 635-208, for unfitness.  The unit commander cited the
applicant’s disciplinary history and his lack of a positive response to
repeated counseling as the basis for the recommendation.

10.  On 25 June 1962, a board of officers convened to consider the
applicant’s case.  The applicant was present at this hearing and was
represented by counsel.  After considering the evidence and testimony, the
board of officers recommended that the applicant receive an UD, for
undesirable habits and traits.

11.  On 12 July 1962, the separation authority approved the recommendation
of the board of officers, and on 30 July 1962, the applicant was discharged
accordingly.

12.  The separation document (DD Form 214) issued to the applicant upon his
discharge confirms he completed a total of 2 years, 4 months, and 9 days of
creditable active military service.  The separation document further shows
he earned no awards or decoration during his active duty tenure.

13.  There is no evidence indicating that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its
15-year statute of limitations.

14.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel who were found unfit or
unsuitable for further military service. The regulation provided, in
pertinent part, that members who displayed undesirable habits and traits
were subject to separation for unfitness.  An UD was normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his youth and lack of behavioral
guidance as an adolescent, and while in the military contributed to his
misconduct, that his discharge was too harsh, and that his post service
conduct has been good were carefully considered.  However, these factors
are not sufficiently mitigating to warrant the requested relief.

2.  There is no indication that the applicant’s youth and immaturity
significantly impaired his ability to serve.  In spite of his youth, the
applicant served for over two years and he was given every opportunity to
succeed.  However, he failed to take advantage of the repeated
rehabilitative counseling provided by members of his chain of command.
Further, his discharge does not appear to be too harsh given his extensive
disciplinary history, and while he is to be congratulated on his good post
service conduct, this factor alone does not provide a sufficient
evidentiary basis to support granting an upgrade of his discharge at this
late date.

3.  The evidence of record confirms that the applicant’s separation
processing was accomplished in accordance with the applicable regulation in
effect at the time.  All requirements of law and regulation were met and
that the rights of the applicant were fully protected throughout the
discharge process.  Finally, his discharge accurately reflects his overall
record of undistinguished service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 July 1962.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
29 July 1965. However, he failed to 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

___BJE _  ___KLW _  __PHM__  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.




            ____Barbara J. Ellis_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011403                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/08/09                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1962/07/30                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |UNFITNESS                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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