RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 January 2005
      DOCKET NUMBER:  AR2004106244


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 an honorable discharge (HD).

2.  The applicant states, in effect, that he had only been married for 3
months when he was drafted and his wife became ill.  He claims that he went
absent without leave (AWOL) to take care of her.  He states that when
confronted with the situation, he went back peacefully and he was given an
UD, which allowed him to go home and care for his wife.  He states that he
asked about a hardship discharge, but no one would help him with that
request.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 November 1960.  The application submitted in this case
is dated 26 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.  The applicant’s record shows he was inducted into the Army and entered
active duty on 16 December 1959.  He successfully completed basic combat
training at Fort Knox, Kentucky and was assigned to Aberdeen Proving Ground
(APG), Maryland to attend advanced individual training in military
occupational specialty (MOS) 763.10 (Ordnance Supply Specialist).

4.  On 13 June 1960, the applicant requested a hardship discharge based on
financial hardship and the illness of his wife related to ulcers.

5.  On 8 July 1960, the commanding general of the United States Army
Ordnance Training Center, APG, denied the applicant’s request for hardship
discharge.  The denial stated the governing regulation specified that undue
hardship and genuine hardship did not necessarily exist solely because of
altered present or expected income, or because the Soldier is separated
from family or must suffer the inconvenience normally incident to military
service.

6.  On 13 August 1960, the applicant departed AWOL from his unit.  He
remained away until being apprehended and returned to military control on
10 October 1960.  On 3 November 1960, a special court-martial found the
applicant guilty of violating Article 86 of the Uniform Code of Military
Justice (UCMJ) based on this period of AWOL.  The resultant sentence
included confinement at hard labor for six months, forfeiture of $28.00 per
month for six months and reduction to private/E-1.

7.  The applicant’s unit commander initiated action to eliminate the
applicant from service under the provisions of Army Regulation 635-208, by
reason of unfitness, and recommended that he receive an UD.  The unit
commander cited the applicant’s AWOL and subsequent court-martial
conviction as the basis for taking the action.  He further indicated that
when the applicant was interviewed concerning reassignment, he stated that
he would get out of the Army if it required him to sit in jail for three
years and acceptance of a dishonorable discharge.  The unit commander
further indicated the applicant was unresponsive to counseling, sullen,
contemptuous and ill-mannered.

8.  On 31 October 1960, the applicant acknowledged that he had been
notified of the separation action pending against him and had been
counseled and advised of the basis for the action recommended.  He further
indicated that military counsel had been made available to him.  The
applicant waived his right to a hearing by a board of officers and elected
not to submit statements in his own behalf.  He further acknowledged that
he understood that if he received an UD, he could be deprived of many or
all rights as a veteran under both Federal and State law and that he could
expect to encounter substantial prejudice in civilian life as a result of
receiving an UD.

9.  On 21 November 1960, the separation authority approved the applicant
separation under the provisions of Army Regulation 635-208, by reason of
unfitness, and directed that he receive an UD.  On 28 November 1960, the
applicant was discharged accordingly.

10.  The DD Form 214 issued to the applicant on the date of his separation,

28 November 1960, shows he completed 7 months and 28 days of creditable
active military service and accrued 107 days of time lost due to AWOL and
confinement.

11.  There is no information on file in the record that indicates the
applicant applied to the Army Discharge Review Board (ADRB) for an upgrade
of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  It provided for the
separation of members for unfitness based on frequent incidents of
discreditable service.  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 claim that he requested a hardship discharge, but no
one would help him, was also considered.  However, the evidence of record
confirms the appropriate authority properly considered his hardship
discharge request.  This request was denied because it did not satisfy the
regulatory criteria necessary to support a hardship discharge.

3.  The evidence of record further confirms the applicant’s separation
processing was accomplished in accordance with the applicable regulation.
All requirements of law and regulation were met and the rights of the
applicant were fully protected throughout the separation process.  Further,
the applicant’s UD accurately reflects his overall record of
undistinguished service.

4.  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.
5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 November 1960.  Therefore, the time

for him to file a request for correction of any error or injustice expired
on
27 November 1963.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___YM__  __FE____  ___RTD _  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.




            ____Fred Eichorn________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106244                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/06                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1960/11/28                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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