RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        DECEMBER 14, 2004
      DOCKET NUMBER:  AR2004105854


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane J. Armstrong            |     |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 be
upgraded to an honorable discharge.

2.  The applicant states that he was very excited on the day that he
enlisted in the Army and that he was looking forward to doing the very best
that he could.  He states that he knew that given the chance, he would work
his way up in rank to the highest level that he could.  He states that
sometime after he completed jump school, he was asked by his company
commander to join the boxing team. He goes on to state that after he joined
the team, his platoon sergeant started “coming down” on him and that
unfortunately, being that he was young and dumb, he was not able to handle
the situation the way he should have.  He states that he ended up making
incorrect decisions, which led to his receiving an undesirable discharge.
He further states that he wanted to fight the charges that were pending
against him; however, he was advised by his counsel that since he had such
a short time left on his enlistment, he should accept the undesirable
discharge.  He states that his counsel informed him that his discharge
would most likely be reviewed and dismissed or corrected at a later date.
He states that for years now he has regretted accepting his counsel’s
advice; however, he understands that he must live with his decisions even
if those decisions were made under stressful conditions.  He concludes by
stating that he is older now and except for this important matter, he has
put his life together.  He states that having his discharge upgraded means
a lot to him and he asks that this Board grant him a favorable review.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 5 March 1962.  The application submitted in
this case is dated 16 March 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.  On 1 July 1959, he enlisted in the Army with parental consent at age
16, for 3 years, in the pay grade of E-1.  He successfully completed his
training as a light weapons infantryman.

4.  The applicant was promoted to the pay grade of E-2 on 1 November 1959
and to the pay grade of E-3 on 2 March 1960.

5.  On 27 July 1960, the applicant was convicted by a summary court-martial
of being absent without leave (AWOL) from 7 July until 16 July 1960.  He
was sentenced to a reduction in pay grade and a forfeiture of pay.

6.  The applicant was convicted on 6 September 1960, by a summary court-
martial of being AWOL from 15 August until 19 August 1960.  He was
sentenced to confinement at hard labor, a reduction in pay grade and a
forfeiture of pay.

7.  On 12 June 1961, he was convicted by a special court-martial of pawning
an Annual Ration Book that was issued to another soldier.  He was sentenced
to confinement at hard labor, a reduction in pay grade and a forfeiture of
pay.

8.  Nonjudicial punishment (NJP) was imposed against the applicant on
25 August 1961, for missing bed check.  His punishment consisted of
restriction.

9.  On 22 January 1962, NJP was imposed against him for violating pass
standard operating procedures.  His punishment consisted of extra duty and
restriction.

10.  On 26 January 1962, the applicant underwent a psychiatric evaluation
at the request of his commanding officer.  The attending psychiatrist
diagnosed him as having an anti-social personality and stated that his
condition was not amenable to medical or psychiatric treatment in a
military setting.  The psychiatrist determined that he was mentally able to
distinguish right from wrong and to adhere to the right; that he was
mentally able to understand the nature of board proceeding and to testify
in his own defense; and that there was no physical or mental defect
warranting a medical separation under the provisions of Army Regulation 635-
40.  The psychiatrist recommended that the applicant be discharged under
the provision of Army Regulation 635-208, due to unfitness or Army
Regulation 635-209, due to unsuitability.

11.  The applicant was notified on 26 January 1962, that he was being
recommended for discharge under the provisions of Army Regulation 635-208,
for unfitness.  At the time that he acknowledged receipt of the
notification he waived his rights to a hearing before a board of officers;
to submit a statement in his own behalf; and to be represented by counsel.


12.  The appropriate authority approved the recommendation for discharge on
12 February 1962.  Accordingly, on 5 March 1962, the applicant was
discharged under the provisions of Army Regulation 635-208, for unfitness.
He had completed 2 years, 6 months and 17 days of total active service and
he had approximately 48 days of lost time due to AWOL and confinement.  He
was furnished an Undesirable Discharge Certificate.

13.  A review of the records fail to show that the applicant ever applied
to the Army Discharge Review Board for an upgrade of his discharge within
that Board’s 15-year statute of limitations.

14.  Army Regulation 635-208, then in effect, provided for the separation
of personnel for unfitness.  Paragraph 10b(3) provides that separation
action by the commander exercising general court-martial jurisdiction prior
to board action may direct discharge because of unfitness of an individual
who has waived his right to be heard before a board of officers.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The Board has noted the applicant’s contentions; however, his
contention that he was young and immature at the time is not sufficiently
mitigating to warrant relief.  The evidence of record shows that he was
convicted by two summary court-martials and by one special court-martial
and that he had NJP imposed against him twice as a result of the offenses
that he committed.  Considering his numerous acts of misconduct, it does
not appear that his undesirable discharge is too severe and the character
of the discharge is commensurate with his overall record.

4.  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.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 March 1962; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 March 1965.  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

dja__ ___  jlp  _____  el    _____  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.




                                  ____Jennifer L. Prater___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004105858                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041214                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19620305                                |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |583/UNFITNESS                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  592  |144.5100.0000/FREQ INVOLVE W/MIL AUTH   |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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