RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 November 2005
      DOCKET NUMBER:  AR20050004766


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Ms. LaVerne M. 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, in effect, that his undesirable discharge be
upgraded.

2.  The applicant states, in effect, he was young when he joined the
military and his mother had just been killed.

3.  The applicant did not provide any documentary evidence in support of
this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 17 April 1956, the date of his discharge.  The
application submitted in this case is dated 18 March 2004.

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 complete 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 to conduct a fair and impartial review of this case.  This case is
being considered using reconstructed records that primarily consist of a DD
Form 214 (Report of Separation from the Armed Forces of the United States)
and the documentation from the Army Discharge Review Board consideration
for upgrade of his discharge.

5.  The applicant’s DD Form 214 shows that he enlisted into the Army for a
period of 4 years and entered active duty on 7 January 1955 at the age of
17.  This document further shows that at the time of his separation, he
held the rank of private/pay grade E-1.  It also shows that he completed a
total of 1 year, 2 months, and 1 day of creditable active military service
and accrued 40 days of time lost.

5.  The applicant’s record reveals a disciplinary history which shows he
was convicted by a special court-martial for possession of a false
document.  Records also show accepted nonjudicial punishment (NJP) under
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)
on nine separate occasions for the various offenses including being AWOL
and insubordination.

6.  The applicant's records also contain two pages from the Unit Punishment
Book which shows the applicant was punished on four separate occasions for
being absent without leave (AWOL), two occasions for being insubordinate,
one occasion of missing extra duty, one occasion for dereliction of duty,
and one occasion for unauthorized wear of civilian clothes.

7.  The applicant's records also contain a DD Form 493 (Record of Previous
Convictions), dated 6 March 1956, which shows the applicant was convicted
by a Special Court-Martial for possession, with the intent to deceive, a
certain instrument purporting to be a military pass.  He was sentenced to
confinement at hard labor for six month and forfeiture of $55.00 a month
for six months.

8.  On 22 March 1956, the applicant's overall records were considered by a
Board to determine if he should be eliminated under the provisions of Army
Regulation 615-368 for misconduct.  On 28 March 1956, the Board of Officers
recommended the applicant be removed from military service under the
provisions of Army regulation 615-368 for misconduct.  The findings of the
Board were approved by the General Court Martial Convening Authority.

9.  The applicant’s separation document also confirms that on 17 April
1956, he was separated under the provisions of Army Regulation 615-368 by
reason of unfitness and that he received an undesirable discharge.

10.  There is no evidence in the available records which shows the
applicant sought assistance from his chain of command, mental health
facility, or any other individual for assistance with any personal family
issues.  There is also no evidence in the available records which shows the
death of his mother was the cause of his indiscipline.

11.  The applicant applied to the ADRB for an upgrade of his discharge.  On
22 March 1957, the ADRB reviewed and denied the applicant's request for an
upgrade of his discharge.  The ADRB determined the applicant's discharge
was proper and equitable and the discharge was properly characterized as
undesirable.


12.  On 19 April 1957, the applicant was notified in writing of the ADRB's
findings.

13.  Army Regulation 615-368 (Personnel Separations), in effect at the
time, set forth the basic authority, established the policy, and prescribed
the procedures for separating members for unfitness.  An undesirable
discharge was normally considered appropriate for members separating under
these provisions.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), 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 (emphasis added), 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.

15.  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.

16.  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 (AR 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 contends his undesirable discharge should be upgraded
because he was young at the time he joined the military and because his
mother had just been killed.



2.  Records show that the applicant was 17 years of age at the time of his
enlistment and that he was 18 years old at the time of his offenses.  There
is no evidence that indicates that the applicant was any less mature than
other soldiers of the same age who successfully completed military service.

3.  Although the applicant contends that his mother had just been killed at
the time he entered military service, there is no evidence in the available
records which shows the applicant sought assistance from his chain of
command, mental health facility, or any other individual for assistance
with any personal family issues.  There is also no evidence in the
available records which shows the death of his mother was the cause of his
indiscipline.

4.  Lacking evidence to the contrary, it is presumed that all requirements
of law and regulation were met and the rights of the applicant were
protected throughout the separation process.  Further, the DD Form 214
clearly shows the applicant accrued 40 days of time lost.  As a result, it
appears the undesirable discharge he received accurately reflects his
overall record of active duty service.

5.  Based on the applicant's record of indiscipline which included numerous
instances of AWOL, insubordination, and possession of a false document, the
applicant's service clearly does not meet the standards of acceptable
conduct and performance of duty for Army personnel.  The extent of the
applicant's misconduct also renders his service unsatisfactory.  Therefore,
he is not entitled to either a general discharge or an honorable discharge.

6.  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.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 22 March 1957.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 21 March 1960.  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 file in this case.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LMD___  __SK___  __MHM __  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                 |AR20050004766                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051129                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1956/04/17                              |
|DISCHARGE AUTHORITY     |AR .615-368 . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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