RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2005
      DOCKET NUMBER:  AR20050000217


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Carman Duncan                 |     |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 discharge be upgraded.

2.  The applicant states that he was not given any counsel at the time of
his court-martial and was coerced into pleading guilty to assault.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 August 1958, the date of his discharge.  The application
submitted in this case is dated 21 December 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 limitations 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 the applicant entered active duty on 6 March
1956, completed training and was assigned to duty in Europe.

4.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code
of Military Justice twice for failure to obey a lawful order.

5.  A summary court-martial found the applicant guilty of failure to follow
a lawful order and a special court-martial found him guilty of aggravated
assault.

6.  The documentation relating to the applicant's NJP and courts-martial is
not of record; however, it appears that sentence imposed by the special
court-martial included a period of confinement and a reduction in pay grade
to recruit (E-1).

7.  The records indicate that the applicant was in confinement, as of 20
June 1958, when he was directed to appear before a board of officers
charged with determining if he should be retained on active duty.

8.  The applicant appeared with counsel before a 21 July 1958 board of
officers.  The board recommended that the applicant be discharged under the
provisions of Army Regulation 635-208, because of undesirable habits or
traits of character.

9.  The discharge authority approved the board's recommendation and
directed the applicant be separated with an undesirable discharge.

10.  The applicant was discharged under Army Regulation 635-208 with an
undesirable discharge on 15 August 1958.  The separation document is not of
record.

11.  The Army Discharge Review Board denied the applicant's request for an
upgrade on 18 March 1982.

12.  Army Regulation 635-208, in effect at the time, provided the authority
for discharging enlisted personnel for unfitness.  Separation action was to
be taken when the commander determined that the best interest of the
service would be served by eliminating the individual concerned and
reasonable attempts to rehabilitate or develop the individual to be a
satisfactory Soldier were unlikely to succeed; or rehabilitation was
impracticable.  Unfitness included frequent incidents of a discreditable
nature with military or civil authorities and an established pattern of
shirking.  An undesirable discharge was normally considered appropriate;
however, in unusual circumstances, a general or honorable discharge was
authorized, as directed by the convening authority.

13.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided no evidence to support his contention that he
had no legal help at his courts-martial or that he was coerced into
pleading guilty.

2.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  The character of the discharge is
commensurate with the applicant's overall record of military service.

3.  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.

4.  Record shows the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 18 March 1982.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 17 March 1985.  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

__MDM__  ___CD__  __LCB __  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.





                                  _     _Mark D. Manning____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050000217                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051004                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144 discharge upgrade                   |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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