RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 October 2006
      DOCKET NUMBER:  AR20060005876


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Ms. Rea Nuppenau                  |     |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.

2.  The applicant states that he was young and under stress with family
problems when he received the “B.C. Dis.” [bad conduct discharge] and he
doesn’t think he should have gotten it.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 February 1962.  The application submitted in this case is
dated 14 April 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 was born on 21 January 1937.  Having completed over 6
years of prior active and inactive service, the applicant enlisted in the
Regular Army on 26 August 1960 for a period of 3 years.  He trained as a
construction machine operator.

4.  On 1 November 1960, the applicant was convicted by a summary court-
martial of being absent without leave (AWOL) from 23 October 1960 to
28 October 1960.  He was sentenced to forfeit $25.  On 3 November 1960, the
convening authority approved the sentence.

5.  On 9 December 1960, the applicant was convicted by a summary court-
martial of failure to repair.  He was sentenced to perform hard labor for
30 days without confinement and restriction.  On 9 December 1960, the
convening authority approved the sentence.

6.  On 31 May 1961, the applicant was convicted by a summary court-martial
of being AWOL from 21 May 1961 to 25 May 1961.  He was sentenced to be
reduced to E-1 and restriction.  On 31 May 1961, the convening authority
approved the sentence.

7.  On 3 November 1961, the applicant was convicted by a summary court-
martial of being AWOL from 19 October 1961 to 20 October 1961.  He was
sentenced to forfeit $50.  On 6 November 1961, the convening authority
approved the sentence.

8.  On 23 January 1962, in accordance with his plea, the applicant was
convicted by a special court-martial of being AWOL from 27 November 1961 to

27 December 1961.  He was sentenced to be confined at hard labor for 6
months, to forfeit $70 pay per month for 6 months, and to be reduced to E-
1.  On 29 January 1962, the convening authority approved the sentence but
suspended the sentence to confinement for 6 months.

9.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, the applicant’s DD Form
214 for the period ending 9 February 1962 shows that he was discharged with
an undesirable discharge under the provisions of Army Regulation 635-208
for unfitness due to frequent involvement in incidents of a discreditable
nature with civil or military authorities.  He had served a total of 7
years, 5 months, and
11 days of creditable active service with 63 days of lost time due to AWOL
and confinement.

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 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness.  Section
II of the regulation provided, in pertinent part, for the separation of
personnel for frequent incidents of a discreditable nature with civil or
military authorities.  An undesirable discharge was normally considered
appropriate.

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.  Age is not a sufficiently mitigating factor.  The applicant had
completed over six years of military service prior to his last enlistment
on 26 August 1960.

2.  Family problems are not normally grounds for upgrading a discharge.
There is no evidence the applicant sought assistance from his chain of
command or chaplain on a way to resolve his problems within established
Army procedures.

3.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s separation was administratively correct and in conformance
with applicable regulations.  Without having the discharge packet to
consider, it is presumed his characterization of service was commensurate
with his overall record of service.  As a result, there is no basis for
granting the applicant's request for an honorable or general discharge.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 9 February 1962; therefore, the time for the
applicant to file a request for correction of any injustice expired on 8
February 1965.  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

CD_____  _JP_____  _RN_____  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.




                                  ___Carmen Duncan______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005876                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061024                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19620209                                |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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