RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 November 2005
      DOCKET NUMBER:  AR20050004404


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 that the circumstances of his discharge were such
that he felt that one individual in particular continuously harassed him.
Although he made efforts to get along with him, he had in mind to cause his
discharge under unsatisfactory performance conditions and undertook regular
action to accomplish it.  He felt that his race may have been a factor,
especially in those days before Affirmative Action and Civil Rights were
established.  Thus, his argument was not with the United States itself, as
he was proud to serve his nation; however, certain individuals, such as one
in this case, had the wherewithal and motive to bring multiple charges
against him under the Uniform Code of Military Justice (UCMJ), resulting
eventually in his discharge.

3.  He also states that he believed his military service record would
indicate that for the first half of his service of almost 3 years in total,
his record was very good. However, during his tour of duty in Germany, an
individual began to personally harass him and caused charges under Article
15, UCMJ, to be brought against him for even minor offenses, such as being
late for bed check.  On some charges, particularly, the last one, he could
have accepted Article 15 judgement but tried to defend himself by opting
for a trial and he was not represented well by counsel, whom everyone in
the court proceedings knew was intoxicated and slept during portions of the
proceedings.

4.  He further stated that his company commander recommended a discharge
characterized as general (under honorable conditions) in recognition of the
circumstances.  The effect of the unsatisfactory performance discharge has
been to deny him any health care by the Department of Veterans Affairs
(VA), as well as other VA benefits.  He did not injure anyone while in
uniform or commit any offenses that caused harm to his comrades or to the
nation.  He loved his country and felt that after all those years, it was
time to bring the matter to closure and seek an upgrade of his discharge so
that he may at least receive medical treatment as a Veteran of the United
States Army, which he is proud of.

5.  The applicant provides a personal letter in support of his application.






CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 April 1963, the date of his discharge.  The application
submitted in this case is dated 21 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 his DD Form 214 (Report of Transfer or Discharge).

4.  The applicant’s military records show he entered active duty on
15 August 1960, as a field artillery rocket crewman (147.10).

5.  All the documents containing the facts and circumstances surrounding
the applicant's discharge are not present in the available records.
However, his    DD Form 214 shows that on 1 April 1963, he was discharged
under the provisions of Army Regulation 635-208, for unfitness.  He was
furnished a UD in the pay grade of E-1.   He had a total of 2 years, 7
months, and 9 days of creditable service and had 8 days of lost time due to
absence without leave (AWOL).

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

7.  Army Regulation 635-208, then in effect, set forth the policy for
administrative separation for unfitness (misconduct).  Action to separate
an individual was to be taken when, in the judgement of the commander, it
was clearly established that rehabilitation was impractical or was unlikely
to produce a satisfactory Soldier.  When separation for unfitness was
warranted, an undesirable discharge was normally issued.
8. 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.

9.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to
benefits provided by law.  The honorable characterization is appropriate
when the quality of the member’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.  Whenever there is doubt, it is to be resolved in favor of
the individual.

DISCUSSION AND CONCLUSIONS:

1.  Since all documents pertaining to the applicant's discharge are not on
file in his service record, in the absence of evidence to the contrary,
Government regularity must be presumed and it must be presumed that the
applicant’s administrative separation was accomplished in compliance with
applicable regulations with no procedural errors, which would tend to
jeopardize his rights.

2.  The applicant's contentions are noted; however, there is no evidence,
and the applicant has provided none, to support his contentions.

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.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 April 1963; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 31 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___  ___JTM_  __RLD___  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                 |AR20050004404                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051115                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19630401                                |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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