RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            29 JUNE 2006
      DOCKET NUMBER:   AR20050016538


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Richard Sayre                 |     |Member               |
|     |Mr. Chester Damian                |     |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.

2.  The applicant states that while he was on leave his wife tried to kill
him, but instead shot and killed his mother.  He goes on to state that he
lost it mentally after that and believes that his court-martial was wrong
and that his discharge should be upgraded.  He further states that he did
serve additional time after the court-martial and it was his intention
before the accident occurred to serve his country honorably.  He continues
by stating that he is now 69 years of age and disabled and he desires to
apply for a pension from the Department of Veteran Affairs.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 April 1956.  The application submitted in this case is dated
26 October 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’s 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 for the Board
to conduct a fair and impartial review of this case.

4.  He enlisted on 19 January 1954 for a period of 3 years and on 5 August
1954, while undergoing training at Fort Bliss, Texas, he was convicted by a
special court-martial of striking a superior noncommissioned officer in the
face with his fist.  He was sentenced to a forfeiture of pay and
restriction.

5.  On 17 December 1954, while stationed at Fort Lewis, Washington, he was
convicted by a special court-martial of being absent without leave (AWOL)
from 7 November to 22 November 1954.  He was sentenced to confinement at
hard labor for 3 months (suspended for 6 months on overseas shipment) and a
forfeiture of pay.  The applicant was then transferred to Korea.

6.  On 11 March 1955, he was convicted by a special court-martial of
quitting his post without being properly relieved, of causing a breach of
peace by wrongfully engaging in a fist fight and of committing an assault
on another Soldier by striking at him with a force likely to produce
grievous bodily harm.  He was sentenced to confinement at hard labor for 6
months and a forfeiture of pay.  On 22 June 1955, the unexecuted portion of
his sentence to confinement at hard labor was suspended.

7.  The applicant was subsequently transferred to Fort Totten, New York and
he went AWOL on 1 December 1955.  His commander sent a letter to his wife
in Kansas City, Kansas, informing her that the applicant was AWOL and
requesting that she encourage him to return.  The applicant’s wife
responded to the commander’s letter by informing him that she had had
nothing but trouble from the applicant since he had been home and she had
done everything she could to get him to return because as long as he was
home, her life was in danger.  She went on to state that he had shot at her
three times, that he had cut up a boy so bad that the doctors weren’t
expecting him to live and that he was the complete cause of his mother’s
death.  She requested that he not be given any more passes.

8.  He remained absent until he was returned to military control at Fort
Totten on 21 December 1955, where charges were preferred against him for
the AWOL offense.  On 13 January 1956, he was convicted by a special court-
martial of being AWOL from 1 December to 20 December 1955.  He was
sentenced to confinement at hard labor for 6 months and a forfeiture of
pay.

9.  Meanwhile, the commander submitted a request to have the applicant
appear before a board of officers to determine if he should be separated
from the service under the provisions of Army Regulation 615-368 for
unfitness due to undesirable habits or traits of character.  His request
was approved and the applicant was notified that he was to appear before a
board of officers at Fort Totten.

10.  On 30 March 1956, the applicant appeared before a board of officer
with his counsel present.  The applicant was advised of his right to
question witnesses and to challenge any member of the board.  The only
witness that testified was the applicant’s commander.  The applicant
declined to make any statements in his own behalf.

11.  After reviewing all of the evidence submitted, which included the
letter from his wife among the 10 exhibits presented, the board of officers
determined that the applicant exhibited behavior that tends to show that he
was not reliable or trustworthy and given his three court-martial
convictions at three different units, any further attempts to rehabilitate
him would be futile.  The board recommended that he be discharged from the
service for unfitness under the provisions of Army Regulation 615-368 and
that he be furnished an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions
on 27 April 1956, under the provisions of Army Regulation 615-368 for
unfitness due to undesirable habits or traits of character.  He had served
1 Year, 7 months and 22 days of total active service and had 229 days of
lost time due to AWOL and confinement.

13.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

14.  Army Regulation 615-368, in effect at the time, set forth the basic
authority for the separation of enlisted personnel by reason of unfitness.
That regulation provided for the discharge of individuals who had
demonstrated their unfitness by giving evidence of habits and traits of
character manifested by misconduct.  An undesirable discharge was normally
considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons therefore were
appropriate even given the limited information contained in the available
records.

3.  The applicant’s contentions have been noted by the Board; however, they
are not supported by the available evidence of record and are not
sufficiently mitigating when compared to his overall undistinguished record
of service and the his frequent misconduct during a short amount of
service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 April 1956; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 26 April 1959.  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

____LS  _  ____RS _  ___CD___ 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.




                                  _____Linda Simmons______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050016538                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060629                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1956/04/27                              |
|DISCHARGE AUTHORITY     |AR 615-368 . . . . .                    |
|DISCHARGE REASON        |UNFIT H & T                             |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |583/A51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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