RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            18 MAY 2006
      DOCKET NUMBER:         AR20050009835


      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. Richard J. Eisenbart          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Vick                    |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. William Crain                 |     |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 states that he served 1 year and 28 days, and he was
young when his problems in the Army began.  He further states that now he
is a volunteer in his community, trying to help others to live better, and
that he is a business owner.

3.  The applicant provides in accompaniment with his DD Form 149
(Application for Correction of Military Records), his discharge certificate
(DD Form 214), three Veterans Service Organization Certificates of
Appreciation, and four Lock-Smithing Course Completion Certificates as
supporting documentation with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 December 1964.  The application submitted in this case
is dated 26 May 2005; however, was not received for processing until 6 July
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 limitation 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 inducted into the Army of the United States Army on
11 October 1963 and entered active duty at Fort Brooke, Puerto Rico.  He
completed his basic combat and advanced individual training at Fort
Jackson, South Carolina, with training as an Automobile Maintenance Helper
(630.00) on
4 March 1964.  He was transferred to Mannheim, Germany, reporting for duty
on 21 March 1964.

4.  On 8 April 1964, nonjudicial punishment (NJP) was imposed against him
for failure to obey a lawful order.  His punishment consisted of a
forfeiture of $15.00 for one month, 14 days of restriction, and 14 days of
extra duty.

5.  On 1 June 1964, NJP was imposed against him for failure to obey a
lawful order.  His punishment consisted of 14 days restriction.
6.  On 1 July 1964, NJP was imposed against him for absenting himself from
his unit and remaining in an absent without leave (AWOL) status until being
apprehended by unit police.  His punishment consisted of 14 days of
restriction.

7.  On 20 July 1964, the applicant was tried and convicted by a summary
court-martial for breaking restriction.  His punishment consisted of 30
days confinement at hard labor (suspended for 90 days), a forfeiture of
$50.00 for one month, and a reduction to pay grade E-1.  The punishment was
adjudged, approved, and ordered to be executed by the proper authority on
22 July 1964.

8.  The applicant was referred to medical authorities by his command on
17 August 1964 to undergo a psychiatric evaluation.  It was recommended by
the examining physician that in view of the applicant’s demonstrated
pattern of maladaptive behavior, that he be considered for expeditious
administrative separation from the service.  On 21 August 1964, a bar to
reenlistment was imposed upon the applicant by the proper authority for
repeated acts of misconduct.

9.  On 2 November 1964, the applicant was tried and convicted by a special
court-martial for assaulting a fellow Soldier with a weapon (a broken
bottle), intentionally inflicting grievous bodily harm (a deep cut in the
neck) on him.  His punishment consisted of 30 days confinement at hard
labor, a forfeiture of $54.00 for one month, and a reduction to pay grade E-
1.  The punishment was adjudged, approved, and ordered to be executed by
the proper authority on
6 November 1964.

10.  The applicant underwent a separation medical examination on 10
November 1964 and was found to be physically fit for separation.

11.  On 18 November 1964, the unit commander initiated a recommendation to
eliminate the applicant from the service under the provisions of Army
Regulation 635-208 for unfitness, due to his frequent acts of gross
misconduct and consistent violations of lawful orders and regulations.

12.  On 18 November 1964, the applicant declined the opportunity to confer
with counsel, waived his right to appear before a board of officers, and
declined the opportunity to submit any statements in his behalf.

13.  On 7 December 1964, the appropriate authority (a lieutenant general)
approved the recommendation and directed that he be furnished an
Undesirable Discharge Certificate (DD Form 258A).


14.  Accordingly, he was discharged under other than honorable conditions
on
24 December 1964, under the provisions of Army Regulation 635-208 for
unfitness, due to his frequent acts of gross misconduct and consistent
violations of lawful orders and regulations.  He had served 1 year and 28
days of total active service and had 47 days of lost time due to
confinement.

15.  Available records indicate that the applicant applied to the Army
Discharge Review Board (ADRB) on 20 November 1979 and on 28 February 1980.
The ADRB determined that he was properly and equitably discharged and voted
to deny his request for upgrade of discharge on 4 January 1982.

16.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel by reason of unfitness
for those individuals involved in frequent incidents of a discreditable
nature with civil or military authorities.  An undesirable discharge was
normally considered appropriate.

17.  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.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations in effect at the time, with no
violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons, therefore,
were appropriate considering all of the available facts of the case.

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.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 4 January 1982.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 3 January 1985.  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

___   VJ _  ___ PM  _  ___   WC  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. Vick           __
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050009835                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060518                                |
|TYPE OF DISCHARGE       |UNDESIRABLE                             |
|DATE OF DISCHARGE       |19641224                                |
|DISCHARGE AUTHORITY     |AR635-208 . . . . .                     |
|DISCHARGE REASON        |UNFIT/FI                                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |583/A51.00/UNFIT                        |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |