RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 November 2005
	DOCKET NUMBER:  AR20050001251


	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. Robert J. McGowan

Analyst

The following members, a quorum, were present:


Mr. Thomas D. Howard, Jr.

Chairperson

Mr. John Infante

Member

Ms. Carmen 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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states shortly after arriving in Germany, he began receiving "Dear John" letters from his wife.  He states he was young and immature and took solace in alcohol.  He adds this is the only blemish in an otherwise good life.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 27 April 1963.  The application submitted in this case is dated 20 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 was born on 21 May 1943 and enlisted in the Regular Army for 3 years on 31 May 1960.  He was 17 years old and single when he enlisted with parental consent.  At some point after his enlistment, he got married.

4.  The applicant underwent Basic Combat Training (BCT) at Fort Riley, Kansas and Advanced Individual Training (AIT) at Fort Leonard Wood, Missouri.  Upon completing AIT, he was awarded military occupational specialty (MOS) 640 (Light Vehicle Driver) and send to Fort Gordon, Georgia.  In August 1961, he was reassigned to Germany.

5.  In Germany, the applicant quickly demonstrated that he was a substandard Soldier.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on four occasions for offenses including periods of AWOL (absence without leave) and one instance of insubordination.  He was also convicted by summary courts-martial on four occasions for short periods (1 or 2 days) of AWOL.
6.  The applicant's commander initiated separation action against him under the provisions of Army Regulation (AR) 635-208 for unfitness.  The applicant acknowledged notification on 20 March 1963.  In his acknowledgement, he requested counsel, waived a hearing before a board of officers, and did not elect to make a statement. 

7.  The applicant was ordered to appear before a board of officers on 5 April 1963.  At that time, the board heard evidence from the applicant's chain of command and from the applicant himself.  The applicant stated he damaged a jeep at Fort Gordon and was directed to pay damages of $319.00 when his net pay was less than $20 per month.  He stated his wife was seeking a divorce and he wanted leave to go home and straighten things out, but he was told he was too close to his rotation date and leave was denied.

8.  The board of officers recommended the applicant be separated with a UD for unfitness.  On 15 April 1963, the recommendation of the board of officers was approved by the Commanding general, 3rd Infantry Division.  The applicant was separated with a UD on 27 April 1963.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he served 2 years, 10 months, and 14 days of creditable service and had 14 days of lost time.  He served 1 year, 7 months, and 23 days in Germany.

10.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided, in pertinent part, that members found to be unfit for further military service, and without rehabilitative potential, would be separated.  A UD was normally considered appropriate.

11.  The applicant did not petition the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a disciplinary problem for his chain of command while serving in Germany.  He received NJP on five occasions and was convicted by summary courts-martial on four occasions.

2.  The applicant’s 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.  The applicant has not demonstrated that his discharge was unjust or inequitable.  He has not shown that his post-service conduct is sufficiently meritorious as to mitigate his UD.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 April 1963; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 26 April 1966.  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

__tdh___  __ji____  __cd____  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.



						Thomas D. Howard, Jr.
______________________
          CHAIRPERSON




INDEX

CASE ID
AR200500001251
SUFFIX

RECON

DATE BOARDED
20051103
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19630427
DISCHARGE AUTHORITY
AR 635-208. . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.5100
2.

3.

4.

5.

6.