RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 July 2006
      DOCKET NUMBER:  AR20050018019


      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. Robert Osborn                 |     |Chairperson          |
|     |Mr. John Moeller                  |     |Member               |
|     |Ms. Naomi Henderson               |     |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 general discharge be
upgraded to honorable.

2.  The applicant states he was issued a DD Form 257A (under honorable
conditions) certificate.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 October 1961.  The application submitted in this case is
dated
12 December 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.  Having prior service, the applicant was inducted in the Army of the
United States on 28 June 1960.  He was awarded military occupational
specialty 760.00 (supply clerk).

4.  On 26 June 1961, while serving in Korea and contrary to his plea, the
applicant was convicted by a summary court-martial of failure to repair.
He was sentenced to be reduced to E-1, to forfeit $40 per month for 1
month, and to be confined at hard labor for 1 month.  On 27 June 1961, the
convening authority approved the sentence but suspended the confinement at
hard labor for
3 months.

5.  On 18 July 1961, while serving in Korea and contrary to his pleas, the
applicant was convicted by a summary court-martial of wrongfully
appropriating a 5-ton truck (property of the U.S. Government) and
possessing an unauthorized pass.  He was sentenced to forfeit $40 per month
for 1 month and to be confined at hard labor for 1 month.  On 20 July 1961,
the convening authority approved the sentence.

6.  On 22 August 1961, while serving in Korea and contrary to his plea, the
applicant was convicted by a summary court-martial of being absent without
leave (AWOL) for 3 hours.  He was sentenced to forfeit $40 per month for
1 month and to be confined at hard labor for 1 month.  On 20 July 1961, the
convening authority approved the sentence.

7.  On 7 September 1961, the applicant underwent a psychiatric evaluation
and was diagnosed with emotional instability reaction.  The psychiatrist
recommended that he be discharged under the provisions of Army Regulation
635-209.

8.  On 11 September 1961, the unit commander recommended that the applicant
be separated under the provisions of Army Regulation 635-209, for
unsuitability.  He cited that the applicant had demonstrated he did not
possess the ability to conform to the minimum requirements of the military
service and that he had repeatedly demonstrated irresponsibility,
instability, and inability to profit from experience.

9.  On 15 September 1961, the applicant declined counsel, waived a hearing
before a board of officers, and elected not to submit a statement on his
own behalf.  He also acknowledged that he fully understood that if the
discharge authority approved the recommendation for his discharge he would
also determine the type of discharge to be issued to him.

10.  On 24 October 1961, the applicant was discharged with a general
discharge under the provisions of Army Regulation 635-209 for unsuitability
due to apathy, defective attitudes and inability to expend effort
constructively.  He had served a total of 2 years, 8 months, and 1 day of
active creditable service with
45 days lost time due to confinement.

11.  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.

12.  Army Regulation 635-209, in effect at the time, set forth the policy
and prescribed procedures for eliminating enlisted personnel for
unsuitability.  Action was to be taken to discharge an individual for
unsuitability when, in the commander's opinion, it was clearly established
that:  the individual was unlikely to develop sufficiently to participate
in further military training and/or become a satisfactory Soldier or the
individual's psychiatric or physical condition was such as to not warrant
discharge for disability.  Unsuitability included inaptitude, character and
behavior disorders, disorders of intelligence and transient personality
disorders due to acute or special stress, apathy, defective attitude, and
inability to expend effort constructively, enuresis, chronic alcoholism,
and homosexuality.  Evaluation by a medical officer was required and, when
psychiatric indications are involved, the medical officer must be a
psychiatrist, if one was available.  A general or honorable discharge was
considered appropriate.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  Since the applicant’s record of service included three summary court-
martial convictions and 45 days of lost time, his record of service 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.

2.  The applicant's administrative separation was accomplished in
compliance with applicable regulation with no indication of procedural
errors which would tend to jeopardize his rights.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

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

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 24 October 1961; therefore, the time for the
applicant to file a request for correction of any injustice expired on 23
October 1964.  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

RO_____  _JM_____  _NH____  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.




                                  __Robert Osborn_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018019                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060713                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19611024                                |
|DISCHARGE AUTHORITY     |AR 635-209                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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