RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 August 2006
      DOCKET NUMBER:  AR20060001229


      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:

|     |Ms. Jeanette McCants              |     |Chairperson          |
|     |Mr. Scott Faught                  |     |Member               |
|     |Mr. Rowland Heflin                |     |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 to
general.

2.  The applicant states that as a young man he was unable to read and
write and was considered to be highly impressionable.  He states that even
though he fell in with the wrong group of people he feels his discharge
from the Army was unjust because his commander forced his undesirable
discharge after he [the applicant] reported him to the Inspector General.
Also, he states that his appointed counselor never pointed this fact out at
his appearance before a board of officers or advised him to bring this fact
up for consideration.

3.  The applicant provides a recommendation to appear before a board of
officers, dated 24 March 1959; a first endorsement to the recommendation to
appear before a board of officers, dated 26 March 1959; pages 2-4 of the
board of officers proceedings adjourned on 7 April 1959; a certificate,
dated
17 February 1959, from his company commander; a DD Form 493 (Extract of
Military Records of Previous Convictions); a newspaper article; and a copy
of his DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 July 1959.  The application submitted in this case is dated
15 January 2006.

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.  This
case is being considered using reconstructed records, which primarily
consist of a DD Form 214 and the documents provided by the applicant.

4.  The applicant was born on 27 September 1939.  He enlisted on 7 December
1956 for a period of 3 years.  He trained as a light weapons infantryman.

5.  On 2 December 1958, the applicant was convicted by a summary court-
martial of being absent without leave (AWOL) from 24 October 1958 to
3 November 1958.  He was sentenced to be reduced to E-2, to forfeit $50 for
one month, and restriction for 45 days (suspended).  On 2 December 1958,
the convening authority approved the sentence.

6.  On 3 February 1959, the applicant was convicted by a special court-
martial of being AWOL from 17 January 1959 to 25 January 1959.  He was
sentenced to be confined at hard labor for 6 months, to forfeit $70 per
month for 6 months, and to be reduced to E-1.  On 4 February 1959, the
convening authority approved the sentence.

7.  In a certificate, dated 17 February 1959, the applicant’s company
commander indicated that he had been punished by nonjudicial punishment on
one occasion. No other details are available.

8.  On 24 March 1959, the applicant’s unit commander recommended that he
appear before a board of officers under the provisions of Army Regulation
635-208.  He cited that the applicant had traits of character which served
to render his retention in the service undesirable.  He stated that the
applicant was resentful of discipline, required constant supervision, was
not dependable, that he put forth no effort, that he was a chronic
complainer, and that he was frequently AWOL.

9.  The applicant appeared before a board of officers on 7 April 1959.  The
proceedings state the applicant was explained his rights as a witness in
his own behalf and that he elected to remain silent.  The findings and
recommendations of the board are not available.  The separation authority’s
action is also not available.

10.  The applicant’s DD Form 214 shows that on 10 July 1959 he was
discharged with an undesirable discharge under the provisions of Army
Regulation 635-208 for habits or traits of character manifested by
misconduct.  He had served
2 years, 1 month, and 17 days of creditable active service.  He had lost
time due to AWOL and confinement; however the inclusive dates are not
available.

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 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel having undesirable
habits and traits of character.  The regulation provided for the separation
of personnel who:
(1) gives evidence of an antisocial or amoral trend, chronic alcoholism,
drug addiction, pathological lying, or misconduct; (2) possesses unclean
habits;
(3) repeatedly commits petty offenses not warranting trial by court-
martial;
(4) is a habitual shirker; (5) is recommended for discharge by a
disposition or other board of medical officers because he possess a
psychopathic (antisocial) personality disorder or defect, or is classified
as having “no disease” by the board, and his record of service reveals
frequent disciplinary actions because of infractions of regulations and
commission of offenses, or it is clearly evident his complaints are
unfounded and are made with the intent of avoiding service; or
(6) demonstrates behavior, participation in activities, or associations
which tend to show that he is not reliable or trustworthy.  The regulation
also provided that when discharged because of undesirable habits or traits
of character an Undesirable Discharge Certificate would be furnished.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant
was 17 years old when he enlisted, it appears he successfully completed
basic training and advanced individual training.  Also, it appears he
completed almost 2 years of service prior to his first disciplinary action
in December 1958.

2.  The applicant's contentions pertaining to his company commander and
appointed counsel relate to evidentiary and procedural matters that should
have been adjudicated during the board of officers proceedings and furnish
no basis for recharacterization of the discharge.  Furthermore, the
applicant could have voiced his concerns and failed to do so by electing to
remain silent.

3.  The applicant’s record of service included at least one nonjudicial
punishment, one summary court-martial conviction, one special court-martial
conviction, and numerous days of lost time.  As a result, his record of
service was not satisfactory.  Therefore, the applicant's record of service
is insufficiently meritorious to warrant a general discharge.

4.  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.
 5.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 10 July 1959; therefore, the time for the
applicant to file a request for correction of any injustice expired on 9
July 1963.  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

JM_____  _SF_____  __RH____  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.


                                  __Jeanette McCants____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001229                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060824                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19590710                                |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Habits or traits of character manifested|
|                        |by misconduct                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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