RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          15 July 2004
      DOCKET NUMBER:  AR2004100265


      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. Richard P. Nelson             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Roger W. Able                 |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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
to honorable.

2.  The applicant states that he has carried the “black mark” of his
discharge for 42 years and “would like it erased.”  He states that he was
never doing what his job called for.  His specialty was to have been in Air
Defense Artillery Operations and Intelligence but he was “never put in
training.”  He was a good soldier and loved being in the Army but was
disappointed in not getting to do a real job and his chain of command would
not help him.

3.  The applicant does not provide any documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 21 January 1961.  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 applicant’s military personnel records show that he enlisted in the
Army on 18 November 1960.  He completed basic training and was scheduled to
attend advanced individual training but went Absent Without Leave (AWOL)
before his scheduled training began.  He was assigned a duty military
occupational specialty of 540.00 (Duty Soldier) at the time elimination
proceedings were initiated by his commander.

4.  During the period 18 November 1960 to 10 May 1961, the applicant was
AWOL on three different occasions, was court-martialed twice, and punished
once under Article 15, Uniform Code of Military Justice.

5.  On 11 May 1961, the applicant’s commander recommended the applicant be
considered for discharge under the provisions of paragraph 3, Army
Regulation 635-208, for unfitness.  An undesirable discharge was
recommended due to the applicant’s resistance to all attempts at
rehabilitation.

6.  After being counseled by his commander, the applicant authenticated a
statement with his signature, in which he acknowledged notification of his
commander’s intent, declined representation by legal counsel, declined a
hearing by a board of officers, and declined to submit a statement on his
own behalf.

7.  The intermediate commander interviewed the applicant, reviewed the
proposed discharge action, and recommended approval of the separation
action with an undesirable discharge.

8.  On 12 June 1961 the appropriate authority approved the recommendation
for discharge and directed that the applicant be given an undesirable
discharge.  Accordingly, on 21 June 1961 the applicant was discharged from
the Army after completing 6 months and 16 days of creditable active
military service and accruing 18 days of lost time.

9.  There is no indication in the available records to show that the
applicant applied to the Army Discharge Review Board within its 15-year
statute of limitations.

10.  Army Regulation 635-208, in effect at the time, provided the policies,
procedures, and guidance for the prompt elimination of enlisted personnel
who were determined to be unfit for further military service.  Individuals
discharged under this regulation were normally issued an undesirable
discharge.

11.  Army Regulation 635-200 provides that an honorable discharge is a
separation with honor and entitles the recipient to benefits provided by
law.  The honorable characterization is appropriate when the quality of the
member’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.  Whenever there
is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant never completed training for, and therefore never worked
in, Air Defense Artillery Operations and Intelligence because he kept going
AWOL.

2.  The evidence of record indicates the command attempted to assist the
applicant in performing his duties and conducting himself according to Army
standards by providing him counseling.  He also received two summary court-
martials and one Article 15 as punishment.  The applicant failed to respond
appropriately to these efforts.  By continuing his pattern of misconduct
and poor duty performance, the applicant left his commander no choice but
to initiate separation action.

3.  The reason for discharge and the characterization of service were both
proper and equitable.  Further, the quality of the applicant’s service did
not meet the standards of acceptable conduct and performance expected of
Army personnel; therefore, the applicant is not entitled to an upgrade of
his undesirable discharge to honorable.

4.  The applicant’s entire record of service was considered.  There is no
record or documentary evidence of acts of valor, achievement, or service
that would warrant special recognition.

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 this requirement.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 June 1961; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 20 June 1964.  However, 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

____RA _  ____A___  ____T___  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.




            _________Roger W. Able__________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100265                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040715                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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