RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 September 2006
      DOCKET NUMBER:   AR20060004526


      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. Linda Simmons                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Mr. Alice Muellerweiss            |     |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 general discharge be upgraded and that
his report of separation reflect his military occupational specialty (MOS)
of 131 – tank crewman.

2.  The applicant states, in effect, that he was told that his DD Form 214
would be corrected to reflect an upgrade of his discharge; however, it has
not been done.  He also states that his DD Form 214 should reflect that he
held the MOS of 131- tank crewman.  He also states that he is sorry for
what he did and states that his mother called him while he was in Germany
and told him that she had been raped by an Army recruiter and that she was
having a nervous breakdown. He continues by stating that he has a heart
condition and desires to have this issue corrected before he dies.  He
asserts that he has been in no trouble since his discharge.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 November 1962.  The application submitted in this case is
dated 16 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.  The applicant enlisted in Detroit, Michigan on 9 August 1960 for a
period of 3 years and assignment to Europe.  He completed his training at
Fort Knox, Kentucky and was awarded the primary MOS of 131.00 (armor
crewman).  He was transferred to Germany on 21 January 1961 and was
assigned to an Armored Cavalry Regiment in Nurnberg.  On 29 March 1961, he
was awarded the primary MOS of 630.00 (mechanics helper).  He was advanced
to the pay grade of E-3 on 15 April 1961.

4.  He departed Germany on ordinary leave to the United States on 12
December 1961 with a return date to his unit of 19 January 1962.  He failed
to return as ordered and was reported as being absent without leave (AWOL)
on 20 January 1962.  He remained absent until he was returned to military
control at Fort Riley, Kansas on 18 February 1962.

5.  On 2 March 1962, he was ordered to return to his unit in Germany;
however, on 5 March 1962, he again went AWOL and remained absent until he
was again returned to military control at Fort Riley, where charges were
preferred against him.

6.  He was convicted by a special court-martial on 7 June 1962 of being
AWOL from 20 January to 17 February 1962, from 5 March to 14 May 1962 and
for disobeying a lawful order to return to his unit in Germany.  He was
sentenced to be reduced to the pay grade of E-1 and to perform hard labor
without confinement for 3 months.  However, the convening authority
commuted his sentence to a forfeiture of $25.00 for 1 month.

7.  The applicant received orders directing him to report to Fort Dix, New
Jersey, on 2 July 1962, for return to his unit in Germany.  However, he
failed to report as ordered and remained AWOL until he was again returned
to military control at Fort Riley on 15 August 1962, where charges were
again preferred against him.

8.  On 6 September 1962, he was again convicted by a special court-martial
of being AWOL from 2 July to 14 August 1962.  He was sentenced to
confinement at hard labor for 6 months, reduction to the pay grade of E-1
and a forfeiture of pay.

9.  On 18 October 1962, the applicant underwent a neuropsychiatric
examination and the examining psychiatrist diagnosed him as having a
passive dependency reaction, chronic, mild, manifested by clinging to
family and over involvement in their problems.  He also indicated that the
applicant had received, in addition to the two court-martials, nonjudicial
punishment on three different occasions for missing bed check, disorderly
conduct and telling off the charge of quarters.  He further indicated that
the applicant had applied for a hardship discharge twice and a
compassionate reassignment once; however, all had been disapproved.  He
opined that the applicant had no mental defects that warranted separation
through medical channels and asserted that the applicant could distinguish
between right and wrong, that he could adhere to the right and he could
participate in administrative separation proceedings and recommended that
he be administratively separated.

10.  On 26 October 1962, the applicant’s commander notified him that he was
initiating action to separate him from the service 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 cited as
the basis for recommendation the applicant’s disciplinary record, his
extensive absences, his repeated involvement in incidents of a
discreditable nature with military authorities and the psychiatric
examination.

11.  The applicant declined to consult with counsel, waived all of his
rights and elected not to submit a statement in his own behalf.

12.  The appropriate authority (a major general) approved the
recommendation for discharge on 2 November 1962 and directed that he be
furnished an Undesirable Discharge Certificate.  He also directed that the
unexecuted portion of his sentence be remitted at discharge.

13.  Accordingly, he was discharged under other than honorable conditions
on 8 November 1962.  He had served 1 year, 6 months and 17 days of total
active service and had 253 days of lost time due to AWOL and confinement.
His records also show that his discharge orders reflect his MOS as 630.00.
His DD Form 214 shows in item 16a (Primary Specialty Number and Title) that
he was a 630.00 – Auto Maint Hlpr.

14.  On 5 December 1975, he applied to the Army Discharge Review Board
(ADRB) for an upgrade of his discharge.  He contended at that time that he
had returned from Germany to find his mother very sick and he went AWOL.
When he returned, he applied for a hardship discharge and compassionate
reassignment and both were disapproved.  He went on to state that after
receiving orders to go back to Germany he again went AWOL and continued to
do so until he was put out of the Army.  He continued by stating that he
was then a private investigator with three children and realized what he
did was wrong, but he wanted his discharge upgraded to honorable before his
children grew up and because he had suffered enough.  While the ADRB’s
explanation (case summary) is not contained in the available records, his
records show that on 15 October 1976, the ADRB directed that his discharge
be upgraded to a general discharge by reason of a personality disorder.
Accordingly, a new DD Form 214 and a General Discharge Certificate were
provided to the applicant on 9 December 1976.

15.  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.

16.  Army Regulation 635-5, in effect at the time, served as the authority
for the preparation of the DD Form 214.  It provides, in pertinent part,
that only the primary MOS that is held at the date of separation will be
entered on the DD Form 214.

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 Regulation15-185, 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 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 the seriousness of his offenses and his otherwise undistinguished
record of service, they are not sufficiently mitigating to warrant further
upgrade of his discharge.

4.  Notwithstanding the actions of the ADRB to upgrade his undesirable
discharge to a general discharge, his record simply does not rise to the
level of a fully honorable discharge.

5.  The applicant’s contention that his MOS of 131.00 should be reflected
on his DD Form 214 has been noted and found to be without merit.  That MOS
had been designated as his secondary MOS (SMOS) and there were no
provisions to include a SMOS on the DD Form 214 at the time of his
discharge.  Accordingly, there is no basis to do so at this time.

6.  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.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 15 October 1976.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 14 October 1979.  However,
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

___LS  __  ___PS __  ___AM __  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.



                                  _____Linda Simmons_____
                                           CHAIRPERSON










































                                    INDEX

|CASE ID                 |AR20060004526                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1962/11/08                              |
|DISCHARGE AUTHORITY     |AR635-208 . . . . .                     |
|DISCHARGE REASON        |MISCONDUCT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |583/A51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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