RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20050018247


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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.

2.  The applicant states that he knows that it was wrong to take drugs and
endanger his fellow Soldiers.  He believes that he should have been given
the opportunity to attend a rehabilitation program and make a better
Soldier of himself.  He requests the upgrade to allow him to obtain
assistance from the Department of Veterans Affairs (VA).

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from the Armed Forces of United States (US).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 June 1953, the date of his discharge.  The application
submitted in this case is dated 13 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.  Except his DD Form 214, the available records contain no documentation
related to the applicant’s first period of service and very limited
documentation related to his second enlistment.

4.  The records show the applicant enlisted for three years and entered
active duty on 21 June 1948.  On an undocumented date this enlistment was
extended for one year.  He served on active duty for 3 years, 5 months, and
16 days and was honorably discharged on 6 December 1951 for the purpose of
immediate reenlistment on 7 December 1951.

5.  A 19 April 1952 summary court-martial found the applicant guilty of
absence without leave (AWOL) for the period 3 through 11 March 1952.

6.  A 19 June 1952 summary court-martial found the applicant guilty of AWOL
for the period 3 through 6 July 1952.

7.  A 15 November 1952 special court-martial found the applicant guilty of
AWOL for the period 31 July 1952 through 4 September 1952.

8.  A 5 May 1953 a Board of Officers determined that the applicant’s record
or behavior manifested traits of character that rendered him undesirable
for retention as demonstrated by his habitual AWOL.  The Board recommended
he be discharged from active duty for unfitness.

9.  During the hearing the applicant admitted he had started using drugs at
the age of 16.  He stated that the problem had gotten much worse when he
was stationed in Japan due to their cheap cost and easy accessibility.  He
stated that he had tried to break the habit but had been unable to do so.
He indicated that he had been treated for the drug problem with medication
while in the stockade.

10.  A 29 May 1953 physical examination found the applicant physically and
mentally fit for discharge.  A neuropsychiatric consultation referred to in
both the board of officers and this physical examination is not of record.

11.  The discharge authority approved the board findings and directed that
the applicant be discharged.

12.  The applicant was discharged on 1 June 1953 under Army Regulation 615-
368 for traits of character rendering retention in the service undesirable.
 He had 1 year and 13 days of creditable service for this period with 172
days of lost time.

13.  On 10 June 1981 the Army Discharge Review Board denied the applicant's
petition to upgrade his discharge.

14.  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.
15.  Army Regulation 615-368, then in effect, set forth the policy and
procedures for separation of enlisted personnel for unfitness.  Unfitness
included misconduct and repeated petty offenses, habits and traits of
character manifested by antisocial or amoral trends, chronic alcoholism,
drug addiction, and repeated venereal infections.  Action to separate an
individual was to be taken when, in the judgment of the commander,
rehabilitation was unsuccessful, impractical or was unlikely to produce a
satisfactory Soldier.  When separation for unfitness was warranted an
undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  At the time of the applicant’s discharge the military did not have any
drug and alcohol rehabilitation programs similar to those currently in
effect.  There was no requirement to afford the Soldiers any care beyond
immediate care and detoxification.

2.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  The character of the discharge is
commensurate with the applicant's record of military service for this
period.

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 10 June 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 9 June 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

__CLG__  _J_______  _PMT___  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.




                                  __ Curtis L. Greenway___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050018147                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060818                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1953                                    |
|DISCHARGE AUTHORITY     |AR 615-368                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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