RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 November 2005
      DOCKET NUMBER:  AR20050004902


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Larry Olson                   |     |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 be upgraded to
honorable.

2.  The applicant does not provide an explanation.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 February 1960.  The application submitted in this case is
dated 23 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 enlisted on 26 February 1959 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 111.00 (light weapons
infantryman).

4.  On 26 January 1960, in accordance with his pleas, the applicant was
convicted by a special court-martial of three specifications of being
absent without leave (AWOL) (from 1 July 1959 to 27 July 1959; 7 August
1959 to
6 November 1959; and 25 November 1959 to 27 December 1959).  He was
sentenced to be confined at hard labor for 6 months, to forfeit $55 per
month for 6 months, and to be reduced to E-1.  On 29 January 1960, the
convening authority approved the sentence.  On 4 February 1960, the
unexecuted portion of the applicant’s sentence to confinement was remitted
effective the date of his administrative discharge.

5.  On 5 February 1960, the applicant was notified of his pending
separation under the provisions of Army Regulation 635-208 for unfitness
due to frequent involvement in incidents of a discreditable nature with
civil or military authorities.  His unit commander based his recommendation
for separation on the applicant’s three periods of AWOL, his substandard
conduct and efficiency, and that rehabilitation efforts had been fruitless.

6.  On 17 November 1959, after consulting with counsel, the applicant
declined counsel, waived consideration of his case by a board of officers,
and elected not to make a statement in his own behalf.  He also indicated
that he understood he might be discharged under conditions other than
honorable, that he might be ineligible for many or all benefits as a
veteran under both Federal and State law, and that he might expect to
encounter substantial prejudice in civilian life.

7.  On 12 February 1960, the separation authority approved the
recommendation for separation under the provisions of Army Regulation 635-
208 for unfitness and directed that the applicant be issued an undesirable
discharge.

8.  On 18 February 1960, the applicant was discharged with an undesirable
discharge and a characterization of service as under other than honorable
conditions under the provisions of Army Regulation 635-208 for unfitness
due to frequent involvement in incidents of a discreditable nature with
civil or military authorities.  He had served 4 months and 23 days of
creditable active service with 212 days of lost time due to AWOL and
confinement.

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

10.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness.  Section
II of the regulation provided, in pertinent part, for the separation of
personnel for frequent incidents of a discreditable nature with civil or
military authorities.  An undesirable discharge was normally considered
appropriate.

11.  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 (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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service included one special court-martial
conviction and 212 days of lost time.  As a result, his record of service
was not satisfactory and did not meet the standards of acceptable conduct
and performance of duty for Army personnel.  Therefore, the applicant's
record of service is insufficiently meritorious to warrant an honorable
discharge or general discharge.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 18 February 1960; therefore, the time for the
applicant to file a request for correction of any injustice expired on 17
February 1963.  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

JS_____  PM_____  LO______  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.




            ___John Slone_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004902                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051123                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19600218                                |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness due to frequent involvement in|
|                        |incidents of a discreditable nature with|
|                        |civil or military authorities           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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