RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 September 2005
      DOCKET NUMBER:  AR20050002389


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Mr. Patrick H. McGann             |     |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.

2.  The applicant states, in effect, the military broke their contract with
him.  He claims he enlisted to serve his country with the intent to
complete his full service obligation.  He enlisted under the buddy plan for
training as a tank operator.  The recruiter assured him he would be with
his buddy and that his military occupational specialty (MOS) would be tank
operator.  He claims he was not given his MOS, but was instead trained as a
cook, and he was not assigned with his buddy.  He feels the military did
not keep their contract with him and the lost time was his attempt to
correct this matter.  He feels his discharge should be honorable.

3.  The applicant provides a self-authored letter and 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 23 May 1961.  The application submitted in this case is
dated
25 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 Military Personnel Records Jacket (MPRJ) contains a
statement from the applicant completed during his enlistment processing.
It indicates that all promises made to him were contained in Items 11, 13,
or 37 of the DD Form 4 (Enlistment Record).

4.  The DD Form 4 on file contains the entry “RCT (E-1) in Item 11 (Grade).
 It contains the entry USAREUR (Unassigned) in Item 13 (Initial
Assignment), which indicates his first assignment would to be the United
States Army Europe (USAEUR).  Item 37 (Remarks) contains the entry “No
other promises made”.

5.  The record shows that while still in training at Fort Ord, California,
the applicant departed absent without leave (AWOL) from his unit on 9
February 1961.  He remained away for 66 days until returning to military
control on 15 April 1961.

6.  On 26 April 1961, a Special Court-Martial (SPCM) convicted the
applicant of violating Article 86 of the Uniform Code of Military Justice
(UCMJ) by being AWOL from on or about 9 February through on or about 16
April 1961.  The resultant sentence included a reduction to private/E-1
(PV1), confinement at hard labor for six months and forfeiture of $55.00
per month for six months.

7.  On 4 May 1961, the applicant’s unit commander submitted a
recommendation that the applicant be separated under the provisions of Army
Regulation
635-208, by reason of unfitness and that he receive an UD.  The unit
commander stated the applicant was of no value to the Army, and had
demonstrated through his actions and conversations with him he would not
Soldier and would always be a disciplinary problem.

8.  The applicant was counseled and advised of the basis for the
contemplated separation action and of his right to be represented by
counsel at a hearing.  He waived his right to have his case considered by a
board of officers, and he elected not to summit a statement in his own
behalf.

9.  The separation authority approved the applicant’s separation and
directed he receive an UD.  On 23 May 1961, the applicant was discharged
accordingly.  The separation document (DD Form 214) he was issued confirms
he completed
5 months and 28 days of creditable active military service and accrued 66
days of time lost due to AWOL.

10.  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.

11.  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 contention that his recruited promised him he would
trained as a tank operator and that he would be assigned with his buddy was
carefully considered.  However, there is insufficient evidence to support
this claim.

2.  The evidence of record includes a statement completed by the applicant
during his enlistment processing that confirms he was promised nothing that
was not recorded in the enlistment record.  The DD Form 4 contained no
promise that he would be trained as a tank operator, or that he would be
assigned with his buddy.

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 short and
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 23 May 1961.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
22 May 1964.  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 timely file in
this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JCH__  __TEO__  ___PHM_  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.




                                  _____James C. Hise______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002389                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-09-20                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1961-05-23                              |
|DISCHARGE AUTHORITY     |AR 635-208. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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