RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          23 September 2004
      DOCKET NUMBER:  AR2004102655


      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. Jeanie M. Biggs               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Ms. Eloise C. Pendergast          |     |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 that his general discharge (GD) be upgraded to
honorable.

2.  The applicant states in effect, that his ability to serve was impaired
by his youth and immaturity.

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) which
occurred on 13 October 1961.  The application submitted in this case is
dated 14 January 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 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 was born on 8 December 1942.  At age 17, with parental
consent, the applicant enlisted on 12 January 1960 for a period of 3 years.
 He was awarded the military occupational specialty of ammunition handler
and was promoted to pay grade E-3.

4.  While on active duty, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniformed Code of Military Justice, on two
occasions for  expired operators license and failing to obey an order from
a non-commissioned officer.

5.  On 7 September 1961, the applicant was convicted by a summary court-
martial for being absent without leave (AWOL) from 21 August 1961 to
5 September 1961.  He was sentenced to forfeiture of $50.00 for one month
and reduction to E-2.




6.  On 11 September 1961, the applicant underwent a medical examination and
was medically cleared for administrative separation.

7.  On 19 September 1961, the applicant underwent a psychiatric evaluation
and was determined not to have a disqualifying mental or physical defect
and was cleared for administrative separation.  However, the applicant was
diagnosed with passive-aggressive reaction, chronic, severe.  The
psychiatrist states that, “he early began to have difficulties in
adjustment, completing only 8 grades of school because of the financial
straits and because of his inability to fulfill his scholastic
obligations.”  This medical report also indicated that the applicant’s
military service had been characterized by inability to accept his
responsibilities, disrespect to his superiors, disobedience of orders and
absence without leave.

8.  On 21 September 1961, the applicant’s unit commander recommended that a
Board of Officers be appointed under the provisions of AR 635-208 to
determine if he should be discharged from the service for unfitness.

9.  On 22 September 1961, the applicant was afforded the opportunity to
consult with legal counsel, to submit a statement in his own behalf, and to
have a Board of officers consider his case.  He waived all of these rights.

10.  The intermediate commander concurred with the applicant’s commander’s
recommendation for separation.

11.  On 5 October 1961, the appropriate authority approved the commander’s
recommendation to discharge the applicant.  However, the reason and
authority was changed from AR 635-208, unfitness to AR 635-209,
unsuitability.

12.  Accordingly, on 13 October 1961, the applicant was given a general
discharge under the provisions of AR 635-209, for unsuitability.  He had
1 year, 8 months and 17 days of total active federal service with 15 days
lost time due to AWOL.

13.  Army Regulation 635-209, in effect at the time, set forth the policy
and prescribed procedures for eliminating enlisted personnel for
unsuitability.  Action was to be taken to discharge an individual for
unsuitability when, in the commander's opinion, it was clearly established
that: the individual was unlikely to develop sufficiently to participate in
further military training and/or become a satisfactory soldier or the
individual's psychiatric or physical condition was such as to not warrant
discharge for disability.  Unsuitability included inaptitude,



character and behavior disorders, disorders of intelligence and transient
personality disorders due to acute or special stress, apathy, defective
attitude, and inability to expend effort constructively, enuresis, chronic
alcoholism, and homosexuality.  Evaluation by a medical officer was
required and, when psychiatric indications are involved, the medical
officer must be a psychiatrist, if one was available.  A general or
honorable discharge was considered appropriate.  Otherwise, return to duty
or referral for separation under the provisions of Army Regulation 635-208
was directed.

14.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  Age alone is not a sufficiently mitigating factor to upgrade a properly
issued discharge.

2.  The applicant’s record of service included one summary court-martial
conviction, 15 days of lost time and two NJP’s.  Therefore, the applicant’s
record of service is insufficiently meritorious to warrant an honorable
discharge.

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.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

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






12 October 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

___ecp__  ____ra __  ___rjw ___  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.




            _________Raymond J. Wagner_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102655                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040923                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19611013                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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