RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          16 September 2004
      DOCKET NUMBER:  AR2004100798


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Luther L. Santiful            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 fully honorable discharge.

2.  The applicant states, in effect, that he has worked hard all of his
life and he has suffered the consequences of a UD for more than 40 years.
He contends that he was young and he acted very foolishly, and wishes that
he had the opportunity to do things differently.  Even so, he believes that
clemency is warranted because his punishment was harsh and that under
today's standards he would not have received a UD.  He also states that his
court-martial conviction was an isolated incident.  He was generally a good
soldier and his conduct and efficiency ratings were good.  He also states
that he received awards, decorations and recommendations for his service
and that his record of promotions shows that his ability to serve was
impaired by alcohol use, youth and immaturity.  He believes that his
command abused its authority when he was separated with a UD.

3.  The applicant provides in support of his request a letter written by a
member of the American Legion, Post 144, Ione, Washington, which states
that the applicant has been a very hard worker and a good citizen.  The
Legionnaire stated that the applicant has experienced trouble with alcohol
and that he was separated with a UD as a result of alcohol use.  The
Legionnaire also stated that the applicant believes he was denied due
process in that he spoke with defense counsel for only five minutes in the
preparation of his case and that he was unaware he could have had enlisted
personnel on his court-martial panel.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 13 June 1961.  The application is undated,
however, it was received on 13 November 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 records show that, on 20 December 1959, the applicant’s
mother signed a declaration of parental consent for him to enlist in the
military.  4.  On 5 January 1960, at age 17, the applicant enlisted in the
Regular Army with a moral waiver for joy riding and petty larceny.  He
enlisted for 3 years and training in military occupational specialty (MOS)
642.10 (Heavy Vehicle Driver).  He completed the training requirements and
he was awarded MOS 641.10.  During the training process, the applicant
received ratings of excellent in both his conduct and efficiency.  On 6
June 1960, the applicant was assigned to Germany with duties in his MOS.

5.  On 24 September 1960, a special court-martial (SPCM) convicted the
applicant of attempting to assault a private first class (PFC) by striking
at him with his fist and of behaving disrespectfully towards a lieutenant
and of willfully disobeying a lawful command given by a lieutenant on 18
September 1960.  He was sentenced to confinement at hard labor for 6
months, to forfeit $55.00 pay per month for 6 months and to reduction from
pay grade E-3 to E-2.  Effective
28 November 1960, the unexecuted portion of the sentence that provided for
the forfeiture and confinement was suspended for 4 months.  Effective 1
December 1960, the suspended portion of the sentence was remitted.

6.  On 29 September 1960, the applicant underwent a separation psychiatric
evaluation by a medical physician.  He was diagnosed to have an emotionally
unstable personality.  It was determined that he also had a history of
difficulties in school to include a number of expulsions for fighting.
Following a charge of car theft, he was offered the alternative to join the
Army or go to jail.  He joined the Army and continued to be rebellious,
insubordinate, and a sporadic offender.  However, he performed his job well
most of the time, in-spite of these factors.  He was found to be free from
mental disease and able to differentiate right from wrong and to adhere to
the right.  Further, it was determined that he possessed the mental
capacity to understand and participate in his own defense. The
recommendation was separation under the provisions of Army Regulation 635-
208.

7.  On 10 April 1961, a SPCM convicted the applicant of being absent
without leave (AWOL) form his unit from 25 to 26 March 1961 and of
unlawfully striking a PFC in the face with his fists on 25 March 1961.  His
sentence included reduction from pay grade E-2 to pay grade E-1, to be
confined at hard labor for 6 months and to forfeit $50.00 pay per month for
6 months.  Effective 1 June 1961, the unexecuted portion of the sentence
that provided for the forfeiture and the period of confinement was
suspended for 2 months.

8.  On or about 26 April 1961, the applicant's unit commander recommended
that the applicant be separated under the provisions of Army Regulation 635-
200, for unfitness with a UD.  The unit commander states the basis for the
recommendation were the applicant's numerous acts of misconduct, the above
court-martial actions, and a nonjudicial punishment action that is no
longer in the available record.  The unit commander also states the
applicant was good at performing those duties that he was assigned most of
the time and that there appeared to be nothing wrong with him physically or
mentally.  The problem was his outlook on life and his attitude towards the
Army.  The unit commander's recommendation shows the applicant was
counseled and advised of the bases for the separation action.  He waived a
hearing by a board of officers, and he did not submit a statement in his
own behalf.  The applicant's statement showing that he declined an
administrative separation board is not available.

9.  On 2 May 1961, the applicant underwent a second separation psychiatric
evaluation by a professionally trained psychiatrist.  The evaluation
certificate shows that, on an unknown date, the applicant appeared before
an administrative separation board for separation under the provisions of
Army Regulation 635-208 and that the board recommended retention and
rehabilitation.  He continued to act out and was considered to be
ineffective and undesirable.  The applicant was determined not to be
mentally ill.  He was determined to be self centered, impulsive, and
arrogant with little sense of social responsibility or group loyalty and he
was of average intelligence.  Again, he was determined to be able to
differentiate right from wrong and to adhere to the right. He was
considered to be mentally responsible for his actions and he possessed the
mental capacity to understand and participate in his own defense.  The
recommendation was separation under the provisions of Army Regulation 635-
208.

10.  On 18 May 1961, the applicant's battalion commander recommended
separation under the provisions of Army Regulation 635-208, for unfitness
with a UD.  The battalion commander states that the applicant's numerous
acts of misconduct, his court-martial convictions, and his nonjudicial
punishment action established a pattern of misbehavior.  The applicant was
never transferred between companies of the unit, but he was transferred
between platoons of the company to provide him an opportunity to have
different leadership.  The applicant had been continuously counseled and
evaluated and it was believed that he lacked the basic qualities for
retention in the military.

11.  The applicant's records do not contain all the facts and circumstances
surrounding the discharge process.  However, his record contains a properly
constituted DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge) that was prepared at the time of separation and
authenticated by the applicant.  His DD Form 214 shows that, on 13 June
1961, he was separated under the provisions of Army Regulation 635-208, for
unfitness with a UD.  He had completed 1 year and 27 days of active
military service.  He also had
133 days of lost time due to being AWOL and in military confinement.  He
was separated in pay grade E-1, and the highest pay grade that he achieved
was pay grade E-3.  He was rated unsatisfactory on both his conduct and
efficiency ratings, at the time of separation.  His DD Form 24 shows that
he received no military awards or decorations.

12.  The evidence of record indicates the applicant applied to the Army
Discharge Review Board in 2003 (ADRB).  The ADRB returned his application
without action, because the application was filed outside of the ADRB's 15-
year statue of limitation.

13.  Army Regulation 635-208, in effect at the time set forth the basic
authority for administrative separation for unfitness (misconduct).
Action to separate an individual was to be taken when, in the judgment of
the commander, it was clearly established that rehabilitation was
impractical or was unlikely to produce a satisfactory soldier.  When
separation for unfitness was warranted, a UD was normally issued.

DISCUSSION AND CONCLUSIONS:

1.  Although some of the facts and circumstances surrounding the
applicant's discharge process are missing, an available DD Form 214 shows
that he was separated under the provisions of Army Regulation 635-208, for
unfitness.  Therefore, he would have been afforded the opportunity to
present his case before a board of officers.  He would have consulted with
defense counsel and counsel would have represented him or he would have
voluntarily signed a statement indicating that he did not desire legal
representation.  He would have been informed of the charges against him.
He would have also been informed that he could receive a UD and he would
have been informed of the ramifications of receiving a UD.  The Board
presumes regularity in the discharge process.  He has provided no
information that would indicate the contrary.

2.  The applicant's entire record of service was taken into consideration
and it was determined that his court-martial convictions were not isolated
incidents and his punishments were not severe.  Under today's standards he
could receive a UD given the same circumstances.

3.  The applicant's contention that he was young and immature were also
taken into consideration and it was determined that the applicant met
entrance qualification standards to include age with a waiver.  The Board
found no evidence that he was any less mature than other soldiers of the
same age who successfully completed their military service obligation.

4.  The applicant may have performed assigned tasks well most of the time,
even so, his personal conduct and attitude rendered both his conduct and
efficiency rating unsatisfactory and he received no awards.

5.  There is no evidence available to indicate the applicant's ability to
serve was impaired by alcohol use.  Further, the applicant has provided no
evidence to prove his ability to service was impaired by alcohol.

6.  There is no evidence in the applicant’s record and he has provided no
evidence that shows prejudicial treatment, or arbitrary or capricious
actions by his chain of command.  The Board concludes that the applicant
has provided no evidence to establish a basis for the upgrade of his
discharge.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 June 1961; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
12 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lls___  __jtm___  __mjnt___  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.



                                  Luther L. Santiful
            ______________________
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004100798                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040916                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19610613                                |
|DISCHARGE AUTHORITY     |AR635-208                               |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.5000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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