RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 November 2005
      DOCKET NUMBER:  AR20050004741


      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. Rosa M. Chandler              |     |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 that his undesirable discharge (UD) be upgraded
to a general discharge (GD) under honorable conditions, or to a fully
honorable discharge (HD).

2.  The applicant states, in effect, that he was too immature to understand
the effects of receiving a UD and he was not truthfully advised of the
effect.

3.  The applicant provides in support of his request:

      a.  A letter, dated 15 March 2005, in which he describes his
background.  He indicates that he was separated from his natural parents at
an early age and shuffled from place to place until he joined the military.
 As a child, he suffered several injuries, but none disqualified him from
joining the military.  While traveling by Greyhound bus from Fort Dix, New
Jersey to Alabama, his duffle bag was lost.  While waiting for it to be
found, he learned that his brother was in jail in Georgia for housebreaking
and robbery.  In the process of trying to help his brother, he was accused
of being involved in the housebreaking incident and was also charged and
arrested.  He was held in civilian confinement for 30 days until he
provided proof that he was in Alabama at the time of the incident.  But,
now he was in an absent without leave (AWOL) status and military police
arrested him.  Six months later during the court-martial process, he
provided evidence of what happened and the AWOL charges were dismissed.
His girlfriend met him in Atlanta, Georgia and they got married.  He
discussed getting a hardship discharge with an officer and he was advised
that the process could take up to 2 years.  He was also advised that he
could be out in a week with the UD that he received.  However, he did not
clearly understand what the UD was or that he would lose his benefits.  He
loves his country and he has lived with the disgrace of having a UD for 40
years.  The only thing that he desires in life is to have his UD upgraded.

      b.  A letter, undated, and written by his wife.

      c.  DD Forms 214 (Armed Forces of the United States Transfer or
Discharge) issued on 21 December 1963, 6 May 1965, and 18 February 1966.


      d.  A List of the surgical procedures that he has undergone and the
names of his physicians.


      e.  A Medicare Card and a Medicaid Card issued by the state of
Georgia.


      f.  A Restricted Radiotelephone Operator Permit.
      g.  Social Security Benefit Statements.


      h.  A Certificate of Appreciation for outstanding support and service
during National Drunk and Drugged Driving Awareness Week.


      i.  Letter, Department of Veterans Affairs (DVA), Regional Office,
Atlanta, Georgia, dated 7 September 1993, in which the applicant was denied
non-service connected disability.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 18 February 1966.  The application submitted in this case is
dated 20 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 was born on 1 September 1941.

4.  Prior to the period of service under review, the applicant enlisted in
the Alabama Army National Guard on 6 May 1963 and served on active duty for
training (ADT) from 25 June to 21 December 1963 when he was honorably
released and returned to his unit.

5.  On 6 March 1964, the applicant, now 22 years of age, enlisted in the
Regular Army (RA) and he served until he was honorably separated on 6 May
1965 for immediate reenlistment.

6.   On 7 May 1965, the applicant reenlisted into the RA (unassigned) for 6
years, his previous military occupational specialty (MOS) 62F (Crane-Shovel
Operator) and in pay grade E-3.

7.  The available evidence shows the applicant was AWOL from his unit from
1 July to 13 August 1965 until he was apprehended by civil authorities in
Georgia
on 14 August 1965 and charged with breaking and entering.  He was found not
guilty and returned to military control at the Personnel Control Facility
(PCF), Fort McPherson, Georgia on 14 September 1965.

8.  On 26 October 1965, the applicant was convicted by a special court-
martial (SPCM) of the above AWOL offense.  He was sentenced to a forfeiture
of $354.00 pay per month for 2 months (suspended for 6 months), and to be
confined at hard labor for 2 months.

9.  The applicant was AWOL again from 8 November 1965 to 12 January 1966.

10.  On 25 January 1966, the applicant was convicted by a SPCM of the above
period of AWOL.  He was sentenced to a forfeiture of $62.00 pay per month
for 6 months, and to be confined at hard labor for 6 months.

11.  On 11 February 1966, the applicant underwent a medical examination,
and he was determined to be qualified for separation.

12.  The applicant's records no longer contain all the facts and
circumstances surrounding his discharge process.  However, his records
contain an Army Discharge Review Board (ADRB) Decisional Document which
shows that, on 1 February 1966, his unit commander officially notified him
that he was being recommended for discharge under the provisions of Army
Regulation 635-208 for unfitness with a UD.

13.  Additionally, the ADRB Decisional Documents shows that, on 2 February
1966, the applicant, after being advised by legal counsel, waived his
rights to a hearing before a board of officers, waived further
representation by legal counsel, and declined to submit a statement in his
own behalf.  On 7 February, the applicant underwent a psychiatric
evaluation, and he was determined to suffer from an "immature personality,
passive, aggressive type."  The recommendation was that the applicant be
separated from the service under the provisions of Army Regulation 635-208,
due to unfitness.

14.  On 17 February 1966, the approval authority approved the
recommendation and directed the applicant's discharge for unfitness with a
UD.

15.  The applicant's DD Form 214 shows that, on 18 February 1966, he was
separated under the provisions of Army Regulation 635-208 for unfitness
with a UD.  He had completed 1 month and 26 days of active military service
on the enlistment under review.  He also had 226 days of lost time due to
being AWOL and in confinement.  His other creditable service equaled 2
years and 1 day.

16.  On 2 October 1981, the ADRB denied the applicant’s request for an
upgrade of his discharge under that board's 15-year statute of limitations.

17.  Army Regulation 635-208, in effect at the time set forth the basic
authority for administrative separation for unfitness (misconduct).  Action
to separate an individual was to be taken when, in the judgment of the
commander, it was clearly established that rehabilitation was impractical
or was unlikely to produce a satisfactory Soldier.  A UD or a GD was
considered appropriate.

18.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR 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.  Although, the facts and circumstances surrounding the applicant's
discharge process are missing, an ADRB Decisional Document shows that the
applicant was separated under the provisions of Army Regulation 635-208 for
unfitness.  Prior to separation, he consulted with defense counsel; he was
advised of his rights; and he was afforded the option to present his case
before a board of officers and he declined.  He also declined further legal
representation and the opportunity to submit a statement in his own behalf.


2.  Under the AR 635-208 discharge process, the applicant would have been
informed of the evidence against him; he would have been informed that he
could receive a UD and of the ramifications of receiving a UD.  In the
absence of evidence to the contrary, regularity is presumed in the
discharge process.

3.  The applicant was 22 years old when he enlisted in the RA and 24 years
old when he received his UD.  There is no evidence to suggest he was too
immature to understand what was happening to him.

4.  The applicant underwent a separation medical evaluation and he was
determined to have no medical condition or injury that rendered him
medically unfit and justified processing through medical channels.
5.  Eligibility for veteran's benefits (to include VA medical benefits)
does not fall within the purview of this Board.  Furthermore, the Board
does not grant relief solely for the purpose of receiving VA benefits.

6.  The available evidence clearly shows the applicant left his unit in an
AWOL status on two separate occasions for extended periods of time.  At the
time he was falsely accused and arrested by civil authorities, he had
already been in an AWOL status for more than 1 month (from 1 July to 13
August 1965) when he was arrested by civil authorities on 14 August 1965.

7.  The applicant had many legitimate avenues through which to obtain
assistance with whatever problems he may have experienced without
committing the misconduct which led to the separation action under review.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 2 October 1981.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 1 October 1984.  However,
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                 |AR20050004741                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051115                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19660218                                |
|DISCHARGE AUTHORITY     |AR635-208                               |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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