RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 NOVEMBER 2005
      DOCKET NUMBER:  AR20050003329


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Melvin Meyer                  |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 records be corrected by upgrading his
discharge to honorable.

2.  The applicant states that while in Germany during 1961, he became angry
with his superior noncommissioned officer for pulling his tent down on him
to wake him up for guard duty.  His lieutenant heard him arguing with the
staff sergeant and he was told he would be court-martialed for
insubordination.  He was court-martialed and lost 35 days of time.  He
believes his punishment was racially motivated because other whites were
insubordinate and only received Article 15 punishment and were given
honorable discharges.  He feels he should not have been court-martialed,
rather, he should have received Article 15 punishment and given an
honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge), and a letter from the
Department of Defense, Office of the Naval Judge Advocate General, seeking
individuals who received less that fully honorable discharges after April
1971, who were a part of the Inactive Reserves, his response to that
letter, and the reply he received, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 18 March 1963.  The application submitted in this case is dated
22 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.  Documents in the applicant’s records indicate he enlisted and entered
active duty on 25 February 1960.  He served in Germany from July 1961 to
March 1963.

4.  On 11 May 1961, the applicant was convicted by a summary court-martial
of failure to repair.  His punishment was hard labor without confinement
for 30 days and a forfeiture of pay.

5.  On 19 January 1962, he was convicted by a summary court-martial of
possessing, with intent to deceive, an instrument purporting to be an
official pass.  He was sentenced to a forfeiture of pay.

6.  On 15 October 1962, he was convicted by a special court-martial of
being disrespectful in language toward his superior noncommissioned
officer, and for being absent without leave (AWOL) on 29 September 1962, on
1 October 1962, and on 10 October 1962.  He was sentenced to confinement at
hard labor for 3 months and a forfeiture of pay for 3 months.

7.  On 28 November 1962, the applicant’s commander recommended that he be
barred from reenlisting.  His commander’s request was based on the
applicant’s three courts-martial, four letters of indebtedness, three
Article 15’s, defective attitude toward military service, and disregard and
contempt for authority.

8.  On 4 December 1962, his bar to reenlistment was approved.

9.  On 22 January 1963, a medical examination cleared the applicant for
separation.

10.  The facts and circumstance concerning the applicant’s discharge are
not in the available records, however on 18 March 1963, he was discharged
under the provisions of Army Regulation 635-205 (Early Release Overseas
Returnee), with a general, under honorable conditions discharge.  His DD
Form 214, indicates he had 2 years, 11 months, and 18 days of creditable
service and 35 days of lost time.

11.  Army Regulation 635-205, in effect at the time, provided in pertinent
part, that commanders could authorize the discharge of overseas returnees
who had less than 3 months remaining before the expiration of their terms
of enlistment or periods for which they were ordered to active duty.

12.  Army Regulation 635-200, in effect at the time, provided that a
general discharge could be issued to individuals whose military records
were not sufficiently meritorious to warrant an honorable discharge.

13.  The documents submitted with the applicant’s request concern a request
for individuals to participate in a class action lawsuit, who were
discharged from the Inactive Reserve, and who were separated after 19 April
1971.  The applicant was not a member of the Inactive Reserve at the time
of his discharge and separated in 1963, prior to the April 1971 discharge
date requirement.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  There is no evidence in the available records to demonstrate that the
applicant was the victim of racial prejudice.  While the applicant states
that other white soldiers received Article 15’s for insubordination and
were given honorable discharges, the applicant was court-martialed on
several occasions and received three Article 15’s; therefore, he can not
compare his character of service with others.

3  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 March 1963; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
17 March 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

__SK ___  __MM___  __LD____  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.




                                  ______Stanley Kelley________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003329                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051129                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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