RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 October 2005
      DOCKET NUMBER:  AR20050003649


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |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 undesirable discharge be upgraded to an
honorable discharge.

2.  The applicant states that he only had five days before his discharge
date and he did not get a chance to go before a board.

3.  The applicant provides a character reference; his General Educational
Development (GED) diploma; two Certificates of Training; a copy of his DD
Form 214 (Armed Forces of the United States Report of Transfer or
Discharge); his Record of Court-Martial Conviction; his DD Form 4
(Enlistment Record-Armed Forces of the United States); his Enlisted
Qualification Record; his Service Record; and his special court-martial
order.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 March 1961.  The application submitted in this case is dated
28 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 enlisted in the Regular Army on 26 November 1957 for a
period of 3 years.  He completed the required training and was awarded
military occupational specialty 640.00 (Light Vehicle Driver).  He was
promoted to private first class on 19 December 1958.

4.  On 23 November 1959, the applicant was convicted by a special court-
martial of behaving himself with disrespect towards his superior officer.
He was sentenced to confinement at hard labor for 6 months, a forfeiture of
$50.00 pay per month for a like period, and a reduction to the grade of
Recruit E-1.



5.  On 29 November 1960, the applicant was convicted by a summary court-
martial of violating a lawful general regulation by remaining in Juarez,
Mexico during the hours of curfew.  He was sentenced to a forfeiture of
$25.00 pay for one month and a reduction to Recruit E-1.

6.  On 20 January 1961, the applicant was convicted by a summary court-
martial of failing to go to his appointed place of duty, two
specifications.  He was sentenced to a reduction to the grade of Recruit E-
1, restriction to the limits of Battery area for 14 days and a forfeiture
of $70.00 pay for one month.

7.  The applicant's discharge packet is not available.  However, his DD
Form 214 shows he was discharged on 1 March 1961 under the provisions of
Army Regulation 635-208 based on frequent incidents of a discreditable
nature with civil or military authorities.  He received an undesirable
discharge with service characterized as under other than honorable
conditions.  He completed 2 years, 11 months and 25 days of active military
service and 101 days lost time due to confinement.

8.  The applicant submitted a character reference in support of his claim.
The individual indicated that the applicant was a dedicated professional
drycleaner, a conscientious team member, and has an agreeable personality.

9.  There is no evidence of record which shows the applicant applied to the
Army Discharge Review Board (ADRB) within its 15-year statute of
limitations.

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 for the discharge of individuals by reason of unfitness
with an undesirable discharge when it had been determined that an
individual’s military record was characterized by one of more of the
following:  frequent incidents of a discreditable nature with civil or
military authorities; sexual perversion; drug addiction or the unauthorized
use or possession of habit forming narcotic drugs or marijuana; an
established pattern for shirking; or an established pattern showing
dishonorable failure to pay just debts.

11.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the Soldier's service generally has met the standards of acceptable
conduct and performance of duty for Army personnel, or is otherwise so
meritorious that any other characterization would be clearly inappropriate.
 Where there have been infractions of discipline, the extent thereof should
be considered, as well as the seriousness of the offense(s).
12.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, the applicant's discharge
proceedings under the provisions of Army Regulation 635-208 for frequent
incidents of a discreditable nature with civil or military authorities, it
is presumed to have been administratively correct and in conformance with
applicable regulations.

2.  The applicant's service record shows two summary court-martials and one
special court-martial.  As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant an upgrade to an
honorable or general discharge.

3.  Although the applicant's discharge packet is not available, it is
presumed the separation authority appropriately directed issuance of an
undesirable discharge based on his overall record during the period under
review.

4.  The applicant's character reference was noted; however, it is not
sufficiently mitigating to warrant relief in this case.

5.  The applicant has failed to show through the evidence submitted or the
evidence of record that the type of discharge issued to him was in error or
unjust.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 1961; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 28 February 1964.  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.
  ARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JA______  JM______  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.




                                  James Anderholm_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003649                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051025                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]