RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 SEPTEMBER 2007
      DOCKET NUMBER:  AR20060000522


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Mr. Edward Montgomery             |     |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 records be corrected by upgrading his
discharge to honorable.

2.  The applicant states that the military lost both he and his wife’s pay
records leading to his discharge.

3.  The applicant further states that he wants his discharge upgraded
because his family may be disgraced if they found out that his discharge
was under other than honorable conditions.  He enlisted in the Army in 1960
and served for two years and then reenlisted for three more years.  He
loved the Army and did well in basic training, airborne and jump school,
and was promoted to Specialist Four.
It was not until he went to Okinawa and his records were lost by the Army
that his trouble began.  His company was training South Vietnamese
insurgency and counter-insurgency which lead to his going to Thailand for
further training.  When he returned to Okinawa he tried to find out what
had happened to his records but could not.  He was transferred out of his
unit, but had no orders to go anywhere.  He had no money, and no place to
stay, so he slept on the beach for 21 days and bummed food from a nearby
restaurant.  He was then sent back to the states where he tried to get help
from his chain of commander, but no one would help him.  He went home, got
a job to support his family and was working until the FBI picked him up.

4.  He was court-martialed, put out of the Army, and sent home in shame.
His Army appointed lawyer told him that after two years his bad discharge
would be made to an honorable.  It was not until he signed up for Social
Security that he discovered his discharge was still other than honorable.

5.  The applicant provides copies of his March 1962 and his July 1965
separation documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 21 July 1965.  The application submitted in this case is dated
19 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 enlisted in the Regular Army on 11 March 1960, for a
period of 3 years and reenlisted on 20 March 1962 for a period of 6 years.
He served in Okinawa from May 1962 to November 1963.

4.  On 7 March 1963, he accepted nonjudicial punishment under the
provisions of Article 15, Uniform Code of Military Justice, for stealing
and pawning two coats belonging to another Soldier.  His punishment was
reduction to pay grade E-3, and restriction.

5.  On 22 December 1964, he was convicted by a special court-martial of
being absent without leave (AWOL) from 24 May 1964 to 24 July 1964 and from
          4 August 1964 to 9 December 1964.  He was sentenced to
confinement at hard labor for 3 months, a forfeiture of pay for 3 months
and reduction to the lowest enlisted grade.

6.  On 29 June 1965, he was convicted by a special court-martial of being
AWOL from 9 February 1965 to 14 June 1965.  He was sentenced to confinement
at hard labor for 6 months.

7.  On 23 June 1965, a Medical Examination cleared the applicant for
separation.

8.  The facts and circumstances concerning the applicant’s discharge
proceeding are not in the available records.  However, his DD Form 214
(Armed Forces of the United States Report of Transfer or Discharge)
indicates the applicant was discharge under the provisions of Army
Regulation 635-208, with an undesirable discharge, characterized as under
other than honorable conditions.  His DD Form 214 also showed he had 2
years, 4 months and 15 days of creditable service and 350 days of lost
time.

9.  Army Regulation 635-208, in effect at the time, provided the authority
for discharging enlisted personnel for unfitness.  Separation action was to
be taken when the commander determined that the best interest of the
service would be served by eliminating the individual concerned and
reasonable attempts to rehabilitate or develop the individual to be a
satisfactory Soldier were unlikely to succeed.  Unfitness included frequent
incidents of a discreditable nature with military or civil authorities and
an established pattern of shirking.  An undesirable discharge was normally
considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulation
applicable at the time.

2.  The Board notes that the applicant has failed to submit evidence in
support of his allegations that he was advised that his discharge would be
upgraded after   2 years.

3. There is no evidence in the applicant’s available records to
substantiate his claim that his records were lost and that he was put out
of his unit with no money and no place to stay.  Nor is there evidence that
shows he sought help for his problems from his chain of command when he
returned to the states.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 July 1965; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         20 July 1968.  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

___MT __  __CD ___  __EM ___  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.




                                  _____  Marla Troup_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000522                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060926                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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