RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         4 October 2005
      DOCKET NUMBER:  AR20050002706


      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. Mark D. Manning               |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |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, in effect, that his undesirable discharge (UD)
be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, he was given an UD while under duress,
and without proper legal representation.

3.  The applicant provides 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 14 June 1965, the date of his separation from active duty.
 The application submitted in this case is dated 14 February 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 29 May 1962.  He was trained in and awarded military
occupational specialty (MOS) 111.07 (Light Weapons Infantryman).

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 the following nine separate occasions for the
offense(s) indicated:  27 April 1963, for using disrespectful language
toward a superior noncommissioned officer (NCO);
4 September 1963, for failure to obey a lawful order; 5 September 1963, for
using disrespectful language toward a superior NCO; 24 October 1963, for
using disrespectful language toward a superior NCO; 20 March 1964, for
violating a lawful regulation; 23 April 1964, for disobeying a lawful
order; 11 September 1964, for failure to go to prescribed place of duty; 8
January 1965, for using disrespectful langue toward a superior NCO; and 17
March 1965, for the use of disrespectful language toward a superior NCO.
5.  On 19 May 1964, the applicant's unit commander prepared a Certificate
of Unsuitability for Reenlistment on the applicant.  He requested the
applicant be barred from reenlistment based on his record of habitual
misconduct.  On 20 May 1964, the appropriate authority approved the
applicant’s bar to reenlistment.

6.  On 29 April 1965, a summary court-martial convicted the applicant of
two specifications of violating Article 91 of the UCMJ, by disobeying a
lawful order and being disrespectful toward a superior NCO.  The resultant
sentence included a reduction to private/E-1 and confinement at hard labor
for 30 days.

7.  The applicant’s Military Personnel Record Jacket (MPRJ) contains no
separation packet containing the specific facts and circumstances
surrounding the applicant’s separation processing.  The record does include
a DD Form 214 that shows the applicant was separated under the provisions
of Army Regulation 635-208, for unfitness, frequent involvement in
incidents of a discreditable nature with military authorities and that he
received an UD on 14 June 1965.  This document also confirms he completed a
total of 3 years, and 16 days of creditable active military service.

8.  There is no evidence showing that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statue of limitations.

9.  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 contentions that his UD should be upgraded because he
was under duress at the time of his discharge, and he was not provided
legal representation were carefully considered.  However, there is
insufficient evidence to support these claims.  His record is void of the
specific facts and circumstances surrounding his discharge processing.
However, it does contain a properly constituted DD Form 214 that identifies
the reason and characterization of his discharge.  Therefore, Government
regularity in the discharge process is presumed.

2.  In the absence of information to the contrary, it is concluded that 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 discharge accurately reflects his overall record of
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 should have discovered the alleged error or
injustice now under consideration on 14 June 1965.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
13 June 1965.  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

___MDM_  __LCB__  __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.




                                  ____Mark D. Manning______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002706                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/04                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1965/06/14                              |
|DISCHARGE AUTHORITY     |AR635-208. . . . .                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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