RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 November 2006
      DOCKET NUMBER:  AR20060005860


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 discharge under honorable conditions.

2.  The applicant states, in effect, that he was not lost for eight days
but he was given a discharge, so he is requesting an upgrade to his
discharge.

3.  The applicant provides no additional documentation in support of his
case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 October 1953, the date of his discharge from active duty.
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's military records are not available 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.  However, there were
sufficient documents remaining in a reconstructed record to conduct a fair
and impartial review of this case.

4.  He entered active duty on 27 August 1952.  He served in the military
occupational specialty 1745 (Light Weapons Infantryman) during the period 
4 January 1952 to 28 October 1953.

5.  On 25 April 1953, the applicant was convicted by a Special Court-
Martial for unlawfully striking a Soldier in his face and body with his
hand at Mizumesawa, Japan; and for wrongfully appearing at Mizumesawa,
Japan without his jacket and trouser's buttoned and his shirt tail out.
His sentence consisted of a forfeiture of $52.00 per month for three
months.


6.  On 2 August 1953, the applicant was convicted by a Special Court-
Martial for being absent without leave (AWOL) during the period 5 June 1953
to 12 June 1953 and for twice missing movement.  His sentence consisted of
six months confinement and forfeiture of $55.00 per month for like period.

7.  On 8 August 1953, the applicant's commander recommended that the
applicant be brought before a board of officers to determine whether or not
he should be discharged from the military service for unfitness.

8.  On 29 August 1953, the board of officers convened and the applicant was
represented by counsel during the entire proceedings of the board.  The
findings gave evidence of traits of character, other than those indicating
discharge for physical or mental conditions which render retention in the
Service undesirable, and recommended discharge from the military service
because of unfitness.

9.  On 29 September 1953, the separation authority approved the
recommendation for discharge and directed that the applicant receive an
undesirable discharge.  On 28 October 1953 the applicant was discharged.
The separation document that he was issued shows he completed a total of 1
year, 
9 months and 17 days of creditable active military service and that he
accrued  
8 days of time lost.

10.  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.

11.  Army Regulation 615-368 (Enlisted Personnel-Discharge Unfitness), then
in effect, set forth the policy for administrative separation for unfitness
(misconduct). This regulation provided, in pertinent part, for the
separation of personnel where there was evidence of an antisocial or amoral
trend, chronic alcoholism, criminalism, drug addiction, pathological lying,
unclean habits, including repeated venereal infections or misconduct.
Action to separate an individual was to be taken when, in the judgement of
the commander, it was clearly established that rehabilitation was
impractical or was unlikely to produce a satisfactory Soldier.  When
separation for unfitness was warranted, an undesirable discharge was
normally issued.

12.  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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested that his undesirable discharge be upgraded to a
general discharge.

2.  Evidence shows the applicant was AWOL during the period 5 June 1953 to 
12 June 1953, he missed movement twice, and was convicted by two courts-
martial.  As such, an undesirable discharge was equitable and proper.

3.  Based on his record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  His record of repeated misconduct renders his service
unsatisfactory. Therefore, he is not entitled to either an honorable or a
general discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 October 1953; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
27 October 1956.  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

___pbf___  ___tap__  ___lmd___  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.




                                  ________Thomas A. Pagan________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005860                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061121                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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