RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 September 2005
      DOCKET NUMBER:  AR20040011493


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughnessy Jr.   |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 be
upgraded to a general, under honorable conditions discharge.

2.  The applicant states that he believes the penalty he received was too
severe for the infraction.  He further states that he was discharged under
conditions other than honorable because he missed bed check on more than
one occasion.

3.  The applicant provides documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 25 July 1961.  The application submitted in this case is dated
28 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 record shows that he initially enlisted in the Regular
Army and entered active duty on 28 April 1960.  He was trained in and
awarded military occupational specialty (MOS) 111.00 (Light Weapons
Infantryman).

4.  The applicant’s available records do not contain his complete discharge
processing documents.

5.  The applicant’s Service Record (DA Form 24) shows, in Section I
(Appointments, Promotions, or Reductions), that he was promoted to private
first class (PFC) on 29 December 1960 and that this was the highest rank he
attained while serving on active duty.  Section I further shows that he was
reduced to private/E-2 (PV2) on 1 February 1961 and to private/E-1 on 8
April 1961.

6.  Section 9 of the applicant’s DA Form 24 shows that during his tenure on
active duty, he earned the Sharpshooter Qualification Badge with Rifle Bar.
 He earned no other awards or decorations and the record reveals no acts of
valor, significant achievement or service warranting special recognition.
7.  A DD Form 458 (Charge Sheet), dated 8 April 1961 shows the applicant
was charged with being AWOL (Absent Without Leave) on 26 March 1961.  His
punishment consisted of reduction to pay grade E-1, forfeiture of $25, and
to perform hard labor without confinement for 30 days.

8.  A Charge Sheet, dated 20 April 1961 shows the applicant was charged
with being AWOL for the period 10 April through 13 April 1961.  His
punishment consisted of forfeiture of $35.00 and 30 days of hard labor
without confinement.
The applicant’s record reveals two summary court-martial convictions for
the offenses indicated.

9.  On 17 May 1961, the applicant underwent a psychiatric evaluation.  The
medical officer stated the applicant had the mental capacity to understand
and participate in board proceedings.  He further stated there was evidence
of emotional immaturity and it was not known if the applicant would stay
out of trouble.

10.  On an unknown date, the applicant’s commander recommended he be
separated under the provisions of Army Regulation 635-208 for unfitness.
On 20 May 1961, the applicant acknowledged that he was notified of his unit
commander’s intent to recommend that he be separated under the provisions
of Army Regulation 635-208, by reason of unfitness.  He requested a hearing
before a board of officers and requested counsel to represent him.

11.  On 9 June 1961, the applicant’s unit commander submitted his
recommendation for the applicant’s discharge under the provisions of Army
Regulation 635-208 to his higher headquarters.  He cited the applicant’s
disciplinary history as the basis for his action.  He specifically stated
the applicant’s personal appearance was far below standards and the
applicant had established a pattern of shirking his duties.

12.  The commander noted the applicant had been assigned to two different
platoon leaders and three platoon sergeants and all had counseled the
applicant with negative results.  He rated the applicant’s conduct and
efficiency as unsatisfactory and explained that the applicant had received
punishment consisting of 3 Article 15’s (not in available records) and 2
summary courts-martial





13.  On 16 June 1961, a board of officers convened as requested by the
applicant.  The applicant elected to remain silent.  The board determined
that the applicant’s performance of duty was unacceptable and that he could
not be rehabilitated.  The board recommended the applicant be discharged
from the Army under provisions of Army Regulation 635-208 and given an
Undesirable Discharge.

14.  On 10 July 1961, the appropriate authority approved the recommendation
and directed the applicant be furnished an Undesirable Discharge
Certificate.

15.  On 25 July 1961, the applicant was discharged, in pay grade E-1, under
the provisions of Army Regulation 635-208 for unfitness, with an
undesirable discharge characterized as under other than honorable
conditions.  He had completed 1 year, 2 months, and 25 days of creditable
active service.

16.  The applicant’s record provides no indication that he applied to the
Army Discharge Review Board (ADRB) for an upgrade of his discharge within
that board’s 15-year statute of limitations.

17.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness.  The
regulation provided for the discharge of individuals by reason of unfitness
with an undesirable discharge when it had been determined that an
individual’s military record was characterized by one of more of the
following:  frequent incidents of a discreditable nature with civil or
military authorities; sexual perversion; drug addiction or the unauthorized
use or possession of habit forming narcotic drugs or marijuana; an
established pattern for shirking; or an established pattern showing
dishonorable failure to pay just debts.

18.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it 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.
 A general discharge is a separation from the Army under honorable
conditions.  It is issued to a Soldier whose military record is
satisfactory but not sufficiently meritorious to warrant an honorable
discharge.





DISCUSSION AND CONCLUSIONS:

1.  The applicant claims that the discharge he received was too severe.
The applicant provided no evidence to support his claim.  Additionally, his
record shows he had an extensive disciplinary history that included two
convictions by summary court-martial and acceptance of NJP on three
separate occasions, which was the basis for the separation recommendation
of his unit commander.

2.  Although the applicant’s records do not contain his complete separation
documents, the presumption of regularity is assumed based on the fact the
applicant’s chain of command was in the best position to evaluate his
potential for continued military service.  The applicant’s available record
further confirms his separation processing was accomplished in accordance
with the applicable regulation.  All requirements of law and regulation
were met and his rights were fully protected throughout the separation
process.

3.  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.

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 25 July 1961; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 24 July 1964.  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

__JCH   _  __TEO __  __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.





                                   _____James C. Hise______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011493                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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