RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         1 November 2005
      DOCKET NUMBER:  AR20050003768


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 an honorable discharge (HD).

2.  The applicant states, in effect, that his discharge should be upgraded
because he was young at the time of his service.  He further states he was
being seen at the mental health clinic and was not in the proper state of
mind when the events occurred.  He also claims that he was set-up by
Soldiers in his unit, and that based on his mental health condition, he was
denied airborne school.  He concludes by stating that he had no problems
until his encounter with a captain he names.

3.  The applicant provides two Certifications of Military Service and nine
pages of Morning Reports (DA Form 1) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 October 1959.  The application submitted in this case is
dated
7 March 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 records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.  This case is being
considered using reconstructed records that primarily consist of the
applicant’s Certificates of Military Service (NA Forms 13038), Morning
Reports (DA Form 1), and an Army Discharge Review Board (ADRB) Case Report
(OSA Form 172).


4.  The available documents show the applicant served on active duty as a
member of the Army Reserve from 9 February through 8 August 1958, at which
time he was honorably released from active duty (REFRAD).  He also served
on active duty as a member of the Regular Army (RA) from 27 February
through
8 October 1959, at which time he was separated with an UD.

5.  The available records document no acts of valor, significant
achievement, or service warranting special recognition.  The ADRB case
summary reveals 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) for being absent without leave
(AWOL), and three separate convictions by
special court-martial (SPCM).

6.  The available files are void of a separation packet containing the
specific facts and circumstances surrounding his separation processing.
However, the reconstructed record includes a Certificate of Military
Service that confirms he served on active duty in the RA from 27 February
until 8 October 1959, at which time he was separated with an UD after
completing 7 months and 22 days of creditable active military service of
his enlistment.

7.  The ADRB case summary shows that on 15 September 1981, the applicant
and his counsel appeared in person before the ADRB Traveling Panel at a
personal appearance hearing.

8.  On 26 October 1981, the ADRB, after careful consideration of the
applicant’s military records, the issues and the testimony provided at the
personal appearance hearing, determined the applicant’s discharge was
proper and equitable, and it voted to deny the applicant’s request for an
upgrade of his discharge.

9.  The applicant's available reconstructed records are void of any medical
documents regarding his mental health treatment, and the applicant failed
to provide any treatment records that would allow an evaluation of his
physical and mental health at the time of his discharge.

10.  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.
11.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge should be upgraded based
on his youth at the time he served, and based on his mental health
condition at the time, and the supporting documents he provided were
carefully considered.  However, these factors are not sufficiently
mitigating to support granting the requested relief.

2.  The applicant's records are void of any medical documents that would
confirm the applicant was suffering from a mental condition that impaired
his ability to serve at the time of his discharge.

3.  The available record is void of a separation packet containing the
specific facts and circumstances surrounding the applicant’s discharge.
However, the record does contain a properly constituted Certification of
Military Service and ADRB Case Report that confirm the applicant was
separated under the provisions of Army Regulation 635-208, by reason of
unfitness and received an UD.  In the absence of information to the
contrary, it is concluded that all requirements of law and regulation were
met, and that the rights of the applicant were fully protected throughout
the separation process.  Further, based on the disciplinary history
outlined in the ADRB case summary, it appears the applicant’s discharge
accurately reflects his overall record of 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 exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 26 October 1981.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 25 October 1984.  However, 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JEA__  __TEO__  ___CAK _  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 E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003768                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-01                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1959/10/08                              |
|DISCHARGE AUTHORITY     |AR 635-208. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|                        |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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