RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 January 2005
      DOCKET NUMBER:  AR2004106656


      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:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms.. LaVerne M. Douglas           |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that he was punished for not revealing
the location of a friend who was absent without leave (AWOL).  He claims
that he did not know where his friend was, but was punished anyway.  He
states he was given extra duty, guard duty, kitchen police duty and did not
receive a pass for over four months.  He further indicates that he asked
for emergency leave when his mother became ill, but this leave was refused
and he was told the only way for him to get home was to accept discharge.
He further states that in 1974, he was considering reenlistment and was
told he would have to change his status in order to reenlist.  He contacted
his Congressional Representative and after processing he received a letter
that informed him his reentry (RE) code was changed to RE-3/RE-3B.  As a
result, he believed he was eligible for all benefits administered by the
Department of Veterans Affairs (VA).  He claims he believed his discharge
had been upgraded and did not pursue the issue further.  He since has
applied for benefits and was denied.  He now requests his discharge be
upgraded in order to allow him to receive these benefits.

3.  The applicant provides a self-authored statement, separation document
correction (DD Form 215), and VA Certificate of Eligibility in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 11 October 1965.  The application submitted in this case
is dated
2 April 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 that he initially enlisted in the Regular
Army and entered active duty on 20 February 1963.  He was trained in and
awarded military occupational specialty (MOS) 12B (Combat Engineer).

4.  On 19 February 1965, while serving in Germany, the applicant was
honorably discharged for the purpose of immediate reenlistment, and on 20
February 1965, he reenlisted for three years.

5.  The applicant’s Service Record (DA Form 24) shows, in Section I
(Appointments, Promotions, or Reductions), that he was promoted to private
first class (PFC) on 16 October 1964 and that this was the highest rank he
attained while serving on active duty.  Section I further shows that he was
reduced to private/E-2 (PV2) on 27 May 1965 and to private/E-1 on 16 July
1965.

6.  Section 9 of the applicant’s DA Form 24 shows that during his tenure on
active duty, he earned the Sharpshooter Qualification Badge with Rifle Bar.
 He earned no other awards or decorations and the record reveals no acts of
valor, significant achievement or service warranting special recognition.

7.  The applicant’s disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on the following three separate
occasions of the offenses indicated:  21 May 1965, for being AWOL from on
or about 20 through on or about 21 May 1965; 27 May 1965, for being
derelict in the performance of his duties; and 14 June 1965, for being AWOL
from on or about 14 through on or about 15 June 1965.

8.  The applicant’s record also reveals two summary court-martial
convictions on the dates and for the offenses indicated:  15 July 1965, for
being AWOL from on or about 13 through on or about 15 July 1965; and 16
August 1965, for failing to go to his prescribed place of duty.

9.  On 11 September 1965, the applicant was notified by his unit commander
that it was his intent to recommend the applicant be separated under the
provisions of Army Regulation 635-208, by reason of unfitness.  The
applicant was advised of the basis for the contemplated separation and the
effects of an UD.  He further acknowledged that he understood he could be
deprived of many or all rights as a veteran under both Federal and State
laws and that he could expect to encounter substantial prejudice in
civilian life in situations where the type of service rendered, or type of
discharge received could having a bearing.

10.  Subsequent to counseling, the applicant completed an election of
rights, in which he declined counsel and waived consideration of his case
by a board of officers.  He also completed a statement in which he
commented that he desired discharge because he knew he could not adjust to
the Army.  He also stated that he knew for sure that he could lead a
responsible life as a civilian and that the reason he went AWOL was to help
him get a discharge under the provisions of Army Regulation 635-208.  He
concluded that he wanted out of the Army no matter what type of discharge
he received.

11.  The applicant’s unit commander submitted the recommendation for the
applicant’s discharge under the provisions of Army Regulation 635-208
citing the applicant’s disciplinary history as the basis for the action.

12.  On 22 September 1965, the separation authority directed the
applicant’s discharge for unfitness under the provisions of Army Regulation
635-208 and that he receive an UD.  On 11 October 1965, the applicant was
discharged accordingly.

13.  The separation document (DD Form 214) issued to the applicant on the
date of his separation, 11 October 1965, confirms he completed a total of 1
year,
7 months and 6 days of creditable active military service and accrued 55
days of time lost due to AWOL and confinement.  This document indicates RE-
3 RE-3B and RE-4 were applicable in the space above the applicant’s name.

14.  The applicant provides a DD Form 215, dated 2 November 1976, which
indicates the applicant’s DD Form 214 was corrected to delete RE-3 RE-3B
RE-4 in the space above the name, and to replace this entry with the entry
RE-3, RE-3B.  The applicant also provides a VA Certificate of Eligibility
for loan guaranty benefits, dated in November 1976.

15.  The record provides no indication that the applicant applied to the
Army Discharge Review Board (ADRB) for an upgrade of his discharge within
that board’s 15-year statute of limitations.

16.  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 claim that he was unjustly punished for not revealing
the location of an AWOL friend was not corroborated by the evidence of
record.  Further, the evidence he provided confirming a correction to the
applicable RE codes in his case and the VA Certificate of Eligibility for
loan guaranty were also evaluated.  However, these factors do not provide
an evidentiary basis to support an upgrade of his discharge at this time.

2.  The record shows he had an extensive disciplinary history that included
two convictions by summary court-martial and acceptance of NJP on three
separate occasions, which was the basis for the separation recommendation
of his unit commander.  The record further confirms his separation
processing was accomplished in accordance with the applicable regulation.
All requirements of law and regulation were met and his rights were fully
protected throughout the separation process.  Finally, his UD accurately
reflects his overall record of service.

3.  The evidence of record also shows an administrative correction to his
DD Form 214 that changed the applicable reentry codes was accomplished in
1976.  However, there is no indication the applicant ever requested an
upgrade of his discharge from the ADRB.  Further, it is not within the
purview of the Board to determine the applicant’s eligibility for VA
benefits.  Therefore, any questions he has regarding the VA Certificate of
Eligibility he received should be addressed to that agency.

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 11 October 1965.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
10 October 1968.  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

___LMD_  ___KAN _  __JEA___  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.




            ____Kathleen A. Newman____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106656                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/25                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1965/10/11                              |
|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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