RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 November 2005
      DOCKET NUMBER:  AR20050004586


      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             |
|     |Mr. Joseph A. Adriance            |     |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 the number of days he was absent
without leave (AWOL) was actually four and not seven.  He claims these days
were lost due to a lack of transportation, and that he had called in on
those days and was informed he would not be disciplined.  He claims he has
two honorable discharges and is in need of medical attention from the
Department of Veterans Affairs (VA).

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 27 October 1964.  The application submitted in this case
is dated
17 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 record shows he served on active duty for 6 months, as
a member of the United States Army Reserve (USAR), from 14 January through
13 July 1961, at which time he was honorably separated and returned to his
USAR unit.  The record shows he again served on active duty, as a member of
the USAR, for 1 year, 6 months and 25 days, from 5 December 1960 until
26 March 1962, at which time he was honorably separated for the purpose of
enlistment in the Regular Army (RA).
4.  On 27 March 1962, the applicant enlisted in the RA and entered active
duty in that status.  His Service Record (DA Form 24) shows, in Section I
(Appointments, Promotions, or Reductions), that he entered the RA in the
rank of private first class (PFC), and that this is the highest rank he
attained while serving on active duty.

5.  Section 6 (Time Lost) of the applicant’s DA Form 24 shows that during
his active duty tenure, he accrued 7 days of time lost due to being absent
without leave (AWOL) on the following dates:  25 through 26 April 1964 (2
days);
2 through 3 May 1964 (2 days); 9 May 1964 (1 day); and 16 through 17 May
1964 (2 days).   Section 9 (Medals, Decorations and Citations) shows that
during his active duty tenure, he earned the Sharpshooter Qualification
Badge with Rifle Bar.  There are no acts of valor, significant achievement,
or service warranting special recognition documented in his record.

6.  The applicant’s record 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) on the following six
separate occasions for the offenses indicated:  9 March 1963, for speeding;
23 September 1963, for being AWOL; 3 December 1963, for missing bed check
and being AWOL; 9 December 1963, for breaking restriction; 24 April 1964,
for missing bed check and being AWOL; and 27 April 1964, for breaking
restriction and being AWOL.  His disciplinary history also includes a 15
May 1964 special court-martial conviction of disobeying a lawful order,
being incapacitated by alcohol to properly perform his duties, and being
AWOL; and on 25 May 1964, a summary
court-martial conviction for being absent from his unit.

7.  On 8 June 1964, the applicant’s unit commander recommended that the
applicant be separated under the provisions of Army Regulation 635-208, for
unfitness.  The unit commander cited the applicant’s failure to make any
attempt to fulfill his duties, or satisfy the standards expected of a
Soldier.  He also stated that the applicant had a total disregard for
regulations, meeting them only when it suited his convenience.  He further
sated that disciplinary action taken against the applicant had little
effect, as evidenced by the applicant’s continued commission of the same
offenses.  The unit commander concluded by stating the applicant’s presence
in the unit and in the Army was bad for morale and respect for regulations
and good order.

8.  On 26 August 1964, a board of officers convened to consider the
applicant’s case.  The applicant was present at this hearing and was
represented by counsel.  After considering the evidence and testimony, the
board of officers made the following findings:  the applicant demonstrated
a lack of reliability and an established pattern for shirking in the
performance of his duties; he demonstrated total disregard for disciplinary
actions designed to rehabilitate him into a useful member of the service;
there was an inconsistency in his stated desire to perform his duties and
remain in the service and his demonstrated actions; there was no benefit to
the service or the applicant that would be derived from his transfer or
retention in the service; and he was unfit for further service.

9.  The board of officer finally recommended that the applicant be
separated from the service for unfitness and that he be furnished an UD.
On 19 October 1964, the separation authority approved the findings of the
board of officers and directed the applicant’s UD under the provisions of
Army Regulation 635-208, by reason of unfitness (established pattern of
shirking) and on 27 October 1964, the applicant was discharged accordingly.
 The separation document (DD Form 214) issued to the applicant shows he
completed a total of 2 years, 6 months and
7 days of creditable active military service, and that he accrued 7 days of
time lost due to AWOL.  It also shows that during his tenure on active duty
he earned the Sharpshooter Qualification Badge with Rifle Bar.

10.  On 18 July 1966, the Army Discharge Review Board (ADRB) after
carefully reviewing the applicant’s case, concluded his discharge was
proper and equitable, and it denied his request for an upgrade of his
discharge.

11.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel who were found unfit or
unsuitable for further military service. The regulation provided, in
pertinent part, that members who displayed undesirable habits and traits
were subject to separation for unfitness.  An UD was normally considered
appropriate.

12.  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
because he only accrued 4 days of time lost due to AWOL, that he had two
honorable discharges, and that he is now in need of medical care from the
VA were carefully considered.  However, none of these factors are
sufficiently mitigating to warrant granting the requested relief.

2.  The evidence of record confirms the applicant’s separation processing
was accomplished in accordance with the applicable regulation in effect at
the time.  All requirements of law and regulation were met and that the
rights of the applicant were fully protected throughout the discharge
process.  Further, his discharge accurately reflects his overall record of
undistinguished service.

3.  The applicant’s record reveals an extensive disciplinary history that
included two court-martial convictions and his acceptance of NJP on six
separate occasions.  It also shows he completed over two years of service
and repeatedly failed to respond to rehabilitative measures, both
counseling and disciplinary, taken by members of his chain of command,
which were designed to improve his performance of duty and assist him in
meeting established standards.

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 18 July 1966.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 17 July 1969.  However, he 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 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                 |AR20050004586                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/1                               |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1964/10/27                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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