RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 August 2005
      DOCKET NUMBER:  AR20040011551


      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:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 should have received a GD.

3.  The applicant provides the following documents in support of his
request:  Appointment of Veterans Service Organization as Claimant's
Representative
(VA Form 21-22), Report of Proceedings of Board of Officers (DA Form 37)
and "Minutes", Separation Document (DD Form 214) and American Veterans
(AMVETS) Letter.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s UD be upgraded to a
GD.

2.  Counsel states, in effect, that the bottom of the applicant's (DA Form
37) states "SEE REVERSE SIDE" and apparently he is the only one who has
ever bothered to turn the document over to view it.  He claims the reverse
side of the DA Form 37 states the applicant was to receive a GD instead of
a UD.

3.  Counsel provides the same evidence submitted by the applicant as shown
above.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 5 December 1958.  The application submitted in this case is
dated 15 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 military records were not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents provided for the Board to conduct a fair and
impartial review of this case.  This case is being considered using the
applicant’s DD Form 214 and the documents provided by the applicant and
counsel.

4.  The applicant’s DD Form 214 shows he enlisted in the Regular Army and
entered active duty on 27 March 1957.  He was trained in, awarded, and
served in military occupational specialty (MOS) 760 (Supply Clerk).

5.  On 20 October 1958, a board of officers convened to consider the
applicant for separation under the provisions of Army Regulation 635-208.
At that time, the applicant's commanding officer provided a summary of the
applicant's disciplinary history.  The unit commander stated that
approximately three weeks after the applicant arrived at Goeppingen,
Germany, the applicant was drunk and became involved in an incident with a
German National.  The applicant struck the German National and attempted to
overturn the German’s automobile.  The applicant was tried by Summary Court
Martial for this offense.  A short while after this incident, the applicant
went on a three day pass and returned to duty late and intoxicated.

6.  The unit commander also indicated that, in an effort to rehabilitate
the applicant, he was transferred to different billets, different jobs, and
placed under the supervision various NCO's; however, nothing seemed to
help.  The unit commander further stated that he counseled the applicant
several times to no avail, and in his opinion, the applicant could not be
rehabilitated.

7.  The applicant was present during all sessions of the proceedings and
afforded the opportunity to cross examine adverse witnesses, to present
evidence on his own behalf, and testify in person or submit a written
statement.  He elected not to take either of these actions, and remained
silent throughout the proceedings.

8.  The applicant’s counsel provides a copy of the DA Form 37
prepared on 20 October 1958.  The front side of this form confirms that
after considering the evidence and testimony, the board of officers
recommended
that the applicant receive an UD for undesirable habits and traits, under
the provisions of Army Regulation 635-208.  Item 9 (Remarks) of this
document contains the entry " PVT _________ gives evidence of
undesirability manifested by misconduct."  Item 12 (Action of Officer
Having General Court-Martial Jurisdiction) of this document confirms that
the separation authority approved the recommendation of the board of
officers on 5 November 1958.

9.  The bottom of the DA Form 37 does contain the words "SEE REVERSE SIDE."
 The reverse side of the document provided by counsel contains the
following statement:  "IN VIEW OF THE SUBJECT ENLISTED MEMBER'S RELATIVELY
MINOR CAUSE OF UNDESIRABILITY, SUBJECT ENLISTED MEMBER WILL BE DISCHARGED
FROM THE SERVICE UNDER THE PROVISIONS OF ARMY REGULATION 635-209, AND A
GENERAL DISCHARGE WILL BE GIVEN."

10.  On 5 December 1958, the applicant was discharged from the Army
under other than honorable conditions.  The separation document issued
to the applicant at the time confirms he completed a total of 1 years, 8
months, and 9 days of creditable active military service.  The DD Form 214
further confirms the applicant was separated under the provisions of AR 635-
208 and given an UD.  The applicant authenticated the separation document
with his signature in Item 34 (Signature of Person Being Transferred or
Discharged).

11.  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.

12.  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 he should have received a GD based
upon the statement shown on the reverse side of the DA Form 37 have been
carefully considered.  However, there is insufficient evidence to support
this claim.

2.  The DA Form 37 is a one-sided Department of the Army document, which in
this case provided sufficient space for its intended use.  Item 9 of this
document contains a single line entry and provides space for at least four
additional lines.  It is unclear why it would have been necessary for the
board of officers, or any other official, to use the reverse side of the
form for additional remarks, which in this case indicate the applicant
should have received a GD under the provisions of AR 635-209.

3.  The front side of the DA Form 37 and the board of officer minutes
provided show the applicant was recommended for discharge from the service
under the provisions of Army Regulation 635-208, and that the separation
authority approved the applicant’s discharge under this provision of the
regulation and directed he receive an UD.  Further, the properly
constituted DD Form 214 issued to the applicant upon his discharge confirms
he was separation under the provisions of Army Regulation 635-208, and that
he received an UD.  The applicant authenticated this document with his
signature.  This, in effect, was his confirmation that the information
contained on the DD Form 214 was correct at the time it was prepared and
issued.

4.  The available evidence shows the applicant’s separation processing was
accomplished in accordance with the applicable regulation in effect at the
time.  The applicant was present during all open sessions of the board of
officers that considered his case, and he elected to remain silent
throughout that process.  Therefore, lacking evidence to the contrary, it
is concluded that all requirements of law and regulation were met, the
rights of the applicant were fully protected throughout the discharge
process, and his discharge accurately reflects his overall record of
undistinguished service.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 December 1958.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 4 December 1961.  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

___JNS__  __DJ ___  __MJF __  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 N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011551                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/08/11                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1958/12/05                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Undesirable Habits or Traits of         |
|                        |Character                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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