RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 June 2004
      DOCKET NUMBER:   AR2004099950


      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. Klaus P. Schumann             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Samuel A. Crumpler            |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Linda M. Barker               |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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, upgrade of his undesirable discharge
(UD) to an honorable discharge (HD).

2.  The applicant states, in effect, that he is currently being treated by
the Department of Veterans Affairs (VA) for Alpha 1 antitrypsin deficiency
which is a terminal lung disease.  However, he mistakenly provided the VA
two DD Forms 214 and since one indicated that he was separated under other
than honorable conditions (UOTHC) the VA informed him that he was no longer
eligible to receive health benefits.  He further states that he does not
remember the circumstances surrounding his discharge but needs it to be
upgraded in order to continue to receive treatment by the VA.

3.  The applicant provides the following documents in support of his
application: Self-Authored Letter, dated 5 September 2003: Separation
Documents (DD Forms 214), effective 29 September 1960 and 31 May 1963;
Social Security Administration Letter, dated 8 March 2003; VA Letter, dated
24 July 2002; Letter to VA, dated 1 August 2002; VA Letter, dated 15 August
2002; Letter to VA, dated 8 September 2002; Statements on Medical
Condition; and VA Hospital Medical Consultation and Test Results.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 May 1963.  The application submitted in this case is
dated
23 October 2003.

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.  The available evidence confirms the applicant initially entered active
duty on 19 May 1960.  After serving on active duty for 4 months and 11
days, he was honorably discharged on 29 September 1960, for the purpose of
immediate reenlistment.  On 30 September 1960, he reenlisted for 3 years.

4.  The applicant’s record shows that he was trained in and awarded
military occupational specialty (MOS) 111.10 (Light Weapons Infantryman)
and the highest rank he attained while serving on active duty was
specialist four (SP4).
5.  The record further indicates that during his tenure on active duty, he
earned the Marksman Qualification Badge with Rifle Bar.  The record
documents no other awards, acts of valor, significant achievement, or
service warranting special recognition.

6.  On 7 August 1962, the applicant was convicted by a summary court-
martial (SCM) of one specification of wrongfully having in his possession,
with the intend to deceive, an Armed Forces liberty pass and one
specification of breaking restriction.  The resultant sentence included
reduction to private first class (PFC) and forfeiture of eighty-five
dollars per month for one month.

7.  On 21 September 1962, the applicant was convicted by a SCM of one
specification of being absent without leave (AWOL) for the period from on
or about 8 September 1962 through on or about 16 September 1962.  The
resultant sentence included 30 days hard labor without confinement,
forfeiture of seventy-five dollars and reduction to private/E-1 (PV1).

8.  On 15 October 62, a special court-martial (SPCM) found the applicant
guilty of two specifications of failing to go at the time prescribed to his
appointed place of duty.  The resultant sentence included confinement at
hard labor for two months (suspended for two months) and forfeiture of
seventy dollars per month for two months.

9.  On 27 November 1962, Headquarters, 2nd Battle Group, 35th Infantry,
SPCM Orders 71 vacated the suspension of the confinement at hard labor and
ordered the unexecuted portion of the sentence to confinement to be duly
executed.

10.  On 9 March 1963, the applicant was convicted by a SCM of one
specification of AWOL on 27 February 1963.  The resultant sentence included
hard labor for one month and forfeiture of seventy dollars.

11.  On 16 April 1963, the applicant accepted nonjudicial punishment (NJP)
for failing to be at his appointed place of duty.  His punishment for this
offense was a forfeiture of six dollars and seven days of extra duty.
12.  On 23 April 1963, the applicant was convicted by a SCM of one
specification of AWOL on 17 April 1963.  The resultant sentence included
hard labor for one month and forfeiture of seventy dollars.

13.  The applicant's records contain a psychiatric evaluation, dated 17
January 1963.  This document indicates that the applicant admitted to
having difficulty in the military service and the applicant had numerous
criticisms as to the way the Army was run.  He also blamed his difficulties
on the Army frustrating his desire to get married.  He also admitted to
committing homosexual acts for financial gain and stated with pride that
his military performance was terrible.  The evaluation findings indicated
no psychosis, neurosis, organic brain syndrome, or mental deficiency, and
it concluded that the applicant was free from mental disease, defect, or
derangement.  It further indicated that the applicant was able to
distinguish right from wrong and to adhere to the right.

14.  The record also include a Report of Medical Examination (SF88), dated
3 May 1963, which confirms that the applicant was medically cleared for
separation under the provisions of Army Regulation 635-208.

15.  The applicant’s record does not contain a separation packet containing

the specific facts and circumstances pertaining to his separation
processing.  However, the record does include a copy of United States Army
Personnel Center Special Orders 151, dated 31 May 1965, which directed the
applicant's separation for unfitness on 31 May 1963.

16.  There is also a properly constituted separation document on file that
contains the characterization, authority and reason for the applicant’s
discharge.  This DD Form 214 confirms that the applicant was separated
under the provisions of Army Regulation 635-208, by reason of unfitness,
and received an UD on 31 May 1963.  It also verifies that on the date of
his separation, he held the rank of PV2 and that he had completed a total
of 2 years, 4 months, and
16 days of active military service.

17.  There is no indication that the applicant petitioned the Army
Discharge Review Board for an upgrade to his discharge within its 15-year
statute of limitations.

18.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  It provided, in
pertinent part, that members involved in frequent incidents of a
discreditable nature with civil or military authorities were subject to
separation for unfitness.  An UD was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an upgrade of his UD and the supporting
documents he submitted were carefully considered.  However, none of the
factors presented provide a sufficient evidentiary basis to support
granting the requested relief.

2.  The applicant’s record is void of many of the facts and circumstances
concerning events surrounding the processing of his separation from the
Army.  However, his record does contain a properly constituted DD Form 214
that identifies the reason and characterization of the discharge.  The
applicant authenticated this document with his signature, thereby;
verifying that the information contained in the separation document was
correct at the time it was prepared and issued.  Therefore, there is a
presumption of regularity in the discharge process.

3.  The applicant has failed to provide any evidence that would suggest
that his discharge processing was not accomplished in accordance with the
applicable regulation in effect at the time.  Lacking evidence to the
contrary, it is concluded that all requirements of law and regulation were
met and that the rights of the applicant were fully protected throughout
the separation process.

4.  The evidence shows that the applicant’s discharge accurately reflects
his overall record of service.  While his current medical problems are
unfortunate, they alone do not provide a basis for upgrading his discharge
at this time.

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 31 May 1963.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
30 May 1966.  However, he 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SAC__  ___LE___  __LMB__  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.




            ___Samuel A. Crumpler__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003099950                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004/06/29                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |199630531                               |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 360   |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |