RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060004739


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 (UD)
be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that he had to take care of his
parents.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from the Armed Forces of the United States) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 January 1956, the date of his discharge.  The application
submitted in this case is dated 1 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’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  This case is
being considered using the applicant's DD Form 214 which shows that he
enlisted in the Regular Army on 9 December 1954.  Upon completion of his
training, he was awarded the military occupational specialty (MOS) 4621,
Canvas and Leather Repairman.

4.  All the documents containing the facts and circumstances surrounding
the applicant's discharge are not present in the available records.
However, his DD Form 214 shows that on 17 January 1956, he was discharged
under the provisions of Army Regulation 615-368, for unfitness, in pay
grade E-1.  He was furnished an undesirable discharge.  He had a total of
7 months and 3 days of creditable service.  Item 8 (Reason and Authority
for Separation), of his DD Form 214, shows the entry "SPN (Separation
Program Number) 78", which stands
for "discharge because of unfitness."  Item 38 (Remarks), of his DD Form
214, shows the entry "190 days lost" and the entry "Unfitness, Habits,
Rendering Retention in Svc (service) Undesirable."

5.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

6.  Army Regulation 615-368, in effect at the time, set forth the basic
authority for the separation of enlisted personnel by reason of unfitness.
That regulation
provided for the discharge of individuals who had demonstrated their
unfitness
by giving evidence of undesirable habits of character manifested by
misconduct.
At the time of the applicant’s separation, the regulation provided for the
issuance of an undesirable discharge.

7.  Army Regulation 635-200, paragraph 3-7b, 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.

8.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of facts and circumstances concerning
the events that led to his discharge from the Army; however, the
applicant's record contains a copy of his DD Form 214 he was issued on his
separation.  This document lists the authority for his separation as Army
Regulation 615-368, with an SPN of "78" which stood for unfitness.

2.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he had to take care of his parents while
serving on active duty and therefore amassed the 190 days of lost time
shown on his DD Form 214.

3.  In the absence of evidence to the contrary, the Board presumes
Government regularity and believes that the applicant’s administrative
separation was accomplished in compliance with applicable regulations, with
no procedural errors, which would tend to jeopardize his rights.

4.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 January 1956; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 16 January 1959.  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

_JI_____  _KSJ____  _GJP____  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.




                                  ____John Infante_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004739                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19560117                                |
|DISCHARGE AUTHORITY     |AR 615-368                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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