RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         16 August 2005
      DOCKET NUMBER:  AR20050000733


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that his discharge should be upgraded
because at the time of his service, he was young, far away from home and
not competent enough to adjust to military life standards.  He also claims
his offenses were not serious enough to warrant an UD, and that things were
handled differently back then.  He concluded by stating that although
inexperienced, he was willing to fight for his country.

3.  The applicant provided no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 January 1962, the date of his separation from active
duty.  The application submitted in this case is dated 4 January 2005.

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 applicant's record shows that he enlisted in the Regular Army and
entered active duty on 11 October 1960.  He was trained in and awarded
military occupational specialty (MOS) 120.00 (pioneer).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on
21 July 1961, for the wrongful appropriation of government property.

5.  On 31 July 1961, the applicant was convicted of sleeping at his post as
a sentinel (guard) by a Summary Court-Martial.  The resultant sentence
included performance of hard labor for 14 days and a forfeiture of $30.00.

6.  On 11 September 1961, the applicant was convicted of leaving his
appointed place of duty without proper authorization by a Summary Court-
Martial.  The resultant sentence included 14 days of restriction to the
company area and a forfeiture of $40.00.

7.  The applicant’s unit commander notified him that separation action was
being initiated to separate him under the provisions of Army Regulation 635-
208, by reason of unfitness.  The unit commander cited the applicant’s
continuous unsatisfactory performance, which indicated he was unfit for
further military service as the basis for taking the action.

8.  On 22 November 1961, the applicant consulted with legal counsel, and
after being advised of the basis of the contemplated separation action, he
completed his election of rights, and elected to have his case considered
by a board of officers.

9.  On 20 December 1961, a board of officers convened to consider the
applicant’s case.  The applicant and his counsel were present at the
proceedings.  After carefully considering all the evidence submitted and
testimony presented, the board of officers recommended the applicant be
discharged prior to his ETS under the provisions of Army Regulation 635-
208, by reason of unfitness, and that he receive an UD.

10.  On 18 January 1962, the separation authority approved the
recommendation of the board of officers and directed the applicant be
separated under the provisions of Army Regulation 635-208, by reason of
unfitness, for frequent involvement in incidents of a discreditable nature
with military authorities, and that he receive an UD.  On 30 January 1962,
the applicant was discharged accordingly.

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

30 January 1962, shows that he completed 1 year, 3 months and 20 days of
creditable active military service.

12.  On 25 October 1966, the Army Discharge Review Board (ADRB), after
careful consideration of his military records and all other available
evidence, determined the applicant had been properly discharged and that
his request for a change in the type and nature of his discharge was
denied.

13.  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.

14.  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’s contention that his UD was too harsh given the harsher
standards applied at the time and based on his youth and immaturity was
carefully considered.  However, these factors are not sufficiently
mitigating to warrant an upgrade of his discharge at this late date.

2.  The evidence of record shows 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 short and
undistinguished 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.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 25 October 1966.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 24 October 1969.  However, he failed to
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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MHM_  ___JTM _  ___JBG _  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.




                                  _____Melvin H. Meyer_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000733                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005-08-16                              |
|TYPE OF DISCHARGE       |UD,                                     |
|DATE OF DISCHARGE       |1962/01/30                              |
|DISCHARGE AUTHORITY     |AR635-208 . . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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