RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 December 2006
      DOCKET NUMBER:  AR20060005910


      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. Linda Simmons                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Donald Steenfott              |     |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 to
honorable.

2.  The applicant states that he almost served three years, that he served
well, and that a general discharge is too severe for what happened.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 December 1960.  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 enlisted on 17 March 1958 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 321.10 (lineman).

4.  On 10 March 1959, in accordance with his plea, the applicant was
convicted by a summary court-martial of failure to repair.  He was
sentenced to forfeit $65.  On 10 March 1959, the convening authority
approved the sentence.

5.  On 22 June 1959, in accordance with his plea, the applicant was
convicted by a summary court-martial of sleeping on post.  He was sentenced
to perform hard labor for 45 days without confinement and to forfeit $60.
On 23 June 1959, the convening authority approved the sentence.

6.  On 24 February 1960, in accordance with his pleas, the applicant was
convicted by a summary court-martial of disobeying a lawful order,
communicating a threat to injure, and breaking restriction.  He was
sentenced to be reduced to E-1 and to forfeit $55.  On 24 February 1960,
the convening authority approved the sentence.
7.  Between 17 November 1959 and 20 October 1960, nonjudicial punishment
was imposed against the applicant on nine occasions.

8.  On 4 November 1960, the applicant underwent a psychiatric evaluation
and was diagnosed with passive-aggressive reaction; chronic, moderate,
manifested by inefficiency, passive obstructionism, anxiety and inability
to tolerate authority.  The psychiatrist recommended separation under the
provisions of Army Regulation 635-209.

9.  On 10 November 1960, in accordance with his plea, the applicant was
convicted by a special court-martial of disobeying a lawful order.  He was
sentenced to be confined at hard labor for 6 months, to forfeit $65 pay per
month for 6 months, and to be reduced to E-1.  On 12 November 1960, the
convening authority approved the sentence.

10.  On 5 December 1960, the applicant’s unit commander initiated action to
separate him under the provisions of Army Regulation 635-209.  He cited
that the applicant had been a continuous problem in the unit, that he had
nine nonjudicial punishments, and that he would not tolerate authority and
refused to accept responsibility.  He recommended that the applicant be
furnished a general discharge.

11.  On 6 December 1960, the applicant elected to waive counsel, waived a
hearing before a board of officers, and elected not to submit a statement
on his own behalf.

12.  On 12 December 1960, the separation authority approved the
recommendation for separation and directed that the applicant be furnished
a general discharge.

13.  On 22 December 1960, the applicant was discharged with a general
discharge under the provisions of Army Regulation 635-209 for unsuitability
due to character and behavior disorders.  He had served 2 years, 7 months,
and
3 days of active creditable service with 64 days of lost time due to
confinement.

14.  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.

15.  Army Regulation 635-209, in effect at the time, set forth the policy
and prescribed procedures for eliminating enlisted personnel for
unsuitability.  Action was to be taken to discharge an individual for
unsuitability when, in the commander's opinion, it was clearly established
that the individual was unlikely to develop sufficiently to participate in
further military training and/or become a satisfactory Soldier, or the
individual's psychiatric or physical condition was such as to not warrant
discharge for disability.  Unsuitability included inaptitude, character and
behavior disorders, disorders of intelligence and transient personality
disorders due to acute or special stress, apathy, defective attitude, and
inability to expend effort constructively, enuresis, chronic alcoholism,
and homosexuality.  Evaluation by a medical officer was required and, when
psychiatric indications are involved, the medical officer must be a
psychiatrist, if one was available.  A general or honorable discharge was
considered appropriate.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  Since the applicant’s record of service included nine nonjudicial
punishments, three summary court-martial convictions, one special court-
martial conviction, and 64 days of lost time, his record of service did not
meet the standards of acceptable conduct and performance of duty for Army
personnel.  Therefore, the applicant's record of service is insufficiently
meritorious to warrant an honorable discharge.

2.  The applicant's administrative separation was accomplished in
compliance with applicable regulation with no indication of procedural
errors which would tend to jeopardize his rights.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 22 December 1960; therefore, the time for the
applicant to file a request for correction of any injustice expired on 21
December 1963.  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_____  _PM_____  _DS_____  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                 |AR20060005910                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061205                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19601222                                |
|DISCHARGE AUTHORITY     |AR 635-209                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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