RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20060000087


      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. Joyce A. Wright               |     |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),
characterized as under other than honorable conditions (UOTHC), be
upgraded.

2.  The applicant states, that he was never given a chance to be
rehabilitated and he thought the court was discriminatory.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States, Report of Transfer or Discharge), dated 1 November 1958, and
a copy of his medical discharge summary from Long Beach General Hospital in
support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 November 1958, the date of his discharge.  The application
submitted in this case is dated 29 November 2005 but was received for
processing on 22 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.  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.  This case is being
considered using his DD Form 214 and his NA Form 13038 and GSA Form 6954
(Certification of Military Service), dated 24 February 1986 and 19 July
1979, respectively.




4.  The applicant’s Certification of Military Service, dated 19 July 1979,
shows he was a member of the United States Army Reserve (USAR) from
7 October 1953 to 6 October 1956 and was honorably discharged in the rank
of specialist fourth class.  He reenlisted on 7 October 1956.

5.  All the documents containing the facts and circumstances surrounding
the applicant's discharge are not present in the available records.
However, his    DD Form 214 shows that on 1 November 1958, he was
discharged under the provisions of Army Regulation 635-208, for unfitness,
in the pay grade of E-1.  He was furnished an UD.  He had a total of
4 years, 11 months, and 2 days of creditable service.

6.  The applicant provides a copy of a medical discharge summary from Long
Beach General Hospital, which shows that he was admitted on 28 June 1978,
after his discharge, and was released on 18 July 1978.  He was diagnosed as
having acute organic brain syndrome due to alcohol and alcoholism, habitual
excessive drinking.

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

8.  Army Regulation 635-208, then in effect, set forth the policy for
administrative separation for unfitness (misconduct/repeated offenses not
warranting court-martial).  Action to separate an individual was to be
taken when, in the judgement of the commander, it was clearly established
that rehabilitation was impractical or was unlikely to produce a
satisfactory Soldier.  When separation for unfitness was warranted, an
undesirable discharge was normally issued.

9.  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.

10.  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, 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 all documents pertaining to the applicant's discharge are not on
file in his service record, in the absence of evidence to the contrary,
Government regularity must be presumed and it must be presumed that the
applicant’s administrative separation was accomplished in compliance with
applicable regulations with no procedural errors, which would tend to
jeopardize his rights.

2.  The applicant's contentions are noted; however, there is no evidence,
and the applicant has provided none, to support his contentions.

3.  The Board noted the applicant's medical discharge summary, which was
prepared after his discharge, that shows he was diagnosed as having acute
organic brain syndrome due to alcohol and alcoholism, habitual excessive
drinking.  It was noted by the Board that this post-service hospitalization
took place nearly 20 years after his discharge for unfitness.  Therefore,
this evidence is not sufficient by itself as a basis to upgrade his UD.

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.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 November 1958; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 October 1961.  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____  _JBG___  _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                 |AR20060000087                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19581101                                |
|DISCHARGE AUTHORITY     |AR 635-208. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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