RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 September 2006
      DOCKET NUMBER:   AR20060004467


      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:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas Ray                    |     |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 a
general or honorable discharge.

2.  The applicant states that at the time he was inducted he was only 19
years of age and had never been away from home.  He goes on to state that
at the time, troops were being sent to Christmas Island, where nuclear
tests were being conducted and to Vietnam.  He continues by stating that he
was frightened and was afraid he was going to die, so he went absent
without leave (AWOL).  He also states that he realizes that he made some
bad decisions; however, since his discharge he has matured and displayed
numerous acts of responsibility which include his taking care of an elderly
aunt and uncle for 9 years until they passed away.

3.  The applicant provides two third-party character references.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 June 1963.  The application submitted in this case is dated
17 March 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 was born on 5 October 1942 and was inducted in Dallas, Texas on
27 September 1961.  He completed his training at Fort Carson, Colorado and
was transferred to Fort Eustis, Virginia for duty as a supply handler.  He
was advanced to the pay grade of E-3 on 28 May 1962.

4.  On 18 September 1962, he was assigned the duties of a cook’s helper in
the same unit.



5.  On 11 February 1963, he was convicted by a summary court-martial of
disobeying a lawful order from a noncommissioned officer and disobeying a
lawful order from a superior commissioned officer.  He was sentenced to be
reduced to the pay grade of E-1 and a forfeiture of pay.

6.  On 26 February 1963, he was again convicted by a summary court-martial
of two specifications of the theft of government property.  He was
sentenced to confinement at hard labor for 1 month and a forfeiture of pay.


7.  The facts and circumstances surrounding the applicant’s administrative
discharge are not present in the available records (provided to Department
of Veterans Affairs, Dallas, Texas, on 7 August 1963).  However, his
records do contain a valid Report of Separation (DD Form 214) duly
authenticated by the applicant.  It shows that he was discharged under
other than honorable conditions on 25 June 1963 under the provisions of
Army Regulation 635-208 for unfitness due to his frequent involvement in
incidents of a discreditable nature with military authorities.  He had
served 1 year, 8 months and 7 days of total active service and had 22 days
of lost time due to confinement.

8.  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.

9.  A review of his records also shows that on 5 March 1970, while
incarcerated in Texas, the Texas Department of Corrections submitted a
request for information regarding the applicant’s military service,
discharge and any disciplinary actions taken against him.  His records also
fail to show that he was alerted for reassignment to a location other than
Fort Eustis.

10.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel by reason of unfitness
for those individuals involved in frequent incidents of a discreditable
nature with civil or military authorities.  An undesirable discharge was
normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s administrative separation was accomplished in compliance
with applicable regulations with no violations or procedural errors which
would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However,
given overall undistinguished record of service, they are not sufficiently
mitigating to warrant an upgrade of his discharge.

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 the requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 June 1963; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 24 June 1966.  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

___JA___  __ML ___  ___TR __  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.




                                  ____James Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004467                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1963/06/25                              |
|DISCHARGE AUTHORITY     |AR635-208 . . . . .                     |
|DISCHARGE REASON        |Unfit                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.       |583/a51.00                              |
|144.5000                |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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