RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       1 August 2006
      DOCKET NUMBER:  AR20060001401


      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. Kathleen Newman               |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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, in effect, that his undesirable discharge be
upgraded to a more favorable discharge.

2.  The applicant states, in effect, that he cannot convey to the Board and
every man and woman that has served in the military how sorry he is for his
actions and for letting them down.  He goes on to state that he was young
and immature at the time and did not understand the concepts of duty,
honor, country, and the protection of freedom.  He continues by stating
that he now understands what it all means now and has had to live with the
consequences of his actions for over 40 years and he wishes that he could
make up for the mistakes he made.

3.  The applicant provides a letter of explanation with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 June 1964.  The application submitted in this case is dated
18 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.  He enlisted with parental consent and a moral waiver on 6 December 1962
for a period of 3 years, under the airborne training option.  He completed
his basic and advanced individual training at Fort Jackson, South Carolina
and his airborne training at Fort Benning, Georgia, before being
transferred to Fort Bragg, North Carolina on 24 May 1963, for duty as a
rifleman.

4.  On 9 July 1963, nonjudicial punishment (NJP) was imposed against him
for failure to go to his place of duty due to being late returning from
pass and for exceeding the 150 mile regular pass limit when he went home to
Pennsylvania.  His punishment consisted of a forfeiture of pay, extra duty
and restriction.

5.  On 29 August 1963, he was advanced to the pay grade of E-3 and on
1 November 1963, he went absent without leave (AWOL).  He remained absent
in a deserter status until he was apprehended by civil authorities in
Pennsylvania on 26 December 1963 and was returned to military control at
Fort Meade, Maryland, on 30 December 1963, where charges were preferred
against him.

6.   On 13 February 1964, he was convicted by a special court-martial of
being AWOL from 1 November to 26 December 1963.  He was sentenced to
confinement at hard labor for 2 months and a forfeiture of pay for 2
months.  However, on 28 February 1964, the convening authority suspended
the confinement at hard labor for 2 months, unless sooner vacated.

7.  The applicant again went AWOL on 20 March 1964 and remained absent
until he was again apprehended by civil authorities in Pennsylvania on 27
April 1964 and was returned to military control on 29 April 1964.

8.  The applicant was returned to Fort Meade where the unexecuted portion
of his court-martial sentence to confinement at hard labor was vacated on 5
May 1964.

9.  On 7 May 1964, the applicant underwent a psychiatric evaluation and was
deemed to be mentally responsible, able to distinguish right from wrong,
and to adhere to the right.  The psychiatrist diagnosed the applicant as
having a passive-aggressive reaction – chronic – severe, with anti-social
tendencies, manifested by stubbornness, passive obstructionism, repeated
AWOLs, and repeated conflicts with civil and military authorities.  He
opined that the applicant’s condition was not amenable to hospitalization,
treatment or rehabilitative measures within the service and recommended
that he be administratively discharged.

10.  On 13 May 1964, the applicant’s commander submitted a recommendation
to discharge the applicant from the service under the provisions of Army
Regulation 635-208 for unfitness.  He cited the applicant’s disciplinary
record, his record of absences, his lack of motivation for continued
service and his inability to become a satisfactory Soldier after repeated
attempts to rehabilitate him as the basis for his recommendation.  He also
recommended that the trial by court-martial for the latest AWOL offense be
waived and indicated that a board consisting of a social worker, stockade
chaplain, confinement officer and himself all agreed that he should be
discharged.

11.  The applicant waived all of his rights and declined the opportunity to
submit a statement in his own behalf.
12.  The appropriate authority approved the recommendation for discharge on
25 May 1964 and directed that he be furnished an Undesirable Discharge
Certificate.

13.  Accordingly, he was discharged under other than honorable conditions
on 12 June 1964, under the provisions of Army Regulation 635-208 for
unfitness.  He had served 11 months and 15 days of active service and had
202 days of lost time due to AWOL and confinement.

14.  On 26 December 1979, he applied to the Army Discharge Review Board
(ADRB) for an upgrade of his discharge.  He asserted at that time that his
conduct and efficiency ratings were pretty good, that his record of
promotion showed he was a good Soldier, that he had been a good citizen
since discharge, that his ability to serve was impaired by his youth, that
he came from a deprived background, that the problems for which he received
a waiver to enlist impaired his ability, that he had personal problems,
that he was court-martialed for minor isolated offenses, and that he had
psychiatric problems that impaired his ability to serve.

15.  The ADRB opined that the applicant had successfully completed his
training and demonstrated the ability to serve satisfactorily.  However,
50% of his service had unsatisfactory conduct and efficiency ratings and he
had over 200 days of lost time.  Accordingly, his discharge was both proper
and equitable under the circumstances.  The ADRB denied his request on 17
April 1981.

16.  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 that render then unfit for military service.
 An undesirable discharge was normally considered appropriate.

17.  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.

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 considering all of the facts of the case.

3.  Careful consideration has been given to the applicant’s contentions.
However, his record of undistinguished service and disciplinary record over
such a short period of service does not warrant further relief.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 April 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 16 April 1984.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

_CVM___  ___YM __  _KAN ___  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.




                                  _____K. A. Newman__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001401                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060801                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1964/06/12                              |
|DISCHARGE AUTHORITY     |AR635-208 . . . . .                     |
|DISCHARGE REASON        |UNFIT                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |583/A51.00 UNFIT                        |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]