RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 December 2006
      DOCKET NUMBER:  AR20060006487


      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:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. John M. Moeller               |     |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.

2.  The applicant states, in effect, that he never had a trial date for his
offense, so he was unable to explain what happen before he was discharged.

3. The applicant provides a copy of his statement, dated 27 March 2006.  In
his statement he states, in effect, that his son was rushed to the hospital
and his brother was shot, so he did not know what to do, therefore, he did
not return to duty.  Also, he states that he was in the stockade until he
received his discharge notification.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 September 1960, the date of his discharge from active duty.
The application submitted in this case is dated 26 March 2006; however, it
was received on 9 May 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 records show that he entered active duty on 15
September 1959.  He completed basic combat training and advanced individual
training, and was awarded the military occupational specialty 112.00 (Light
Weapons Infantryman).  The highest rank he attained while serving on active
duty was private E-1.

4.  He was convicted by two Summary Courts-Martial for being absent without
leave (AWOL).





5.  On 7 September 1960, he received notification that he was being
considered for separation under the provisions of Army Regulation 635-208
(Personnel Separations-Discharge) for unfitness.  He was advised of the
rights available to him and the effects of a discharge under less than
honorable conditions.  He waived his rights to a hearing before a board of
officers and he did not submit a statement in his own behalf.  He further
acknowledged that he understood that if an undesirable discharge was issued
to him that such a discharge would be under conditions other than honorable
and as a result he could be deprived of many or all rights as a veteran.
Also, he could expect to encounter substantial prejudice in civilian life
in situations where the type of service rendered in the Armed Forces may
have a bearing.

6.  On 7 September 1960, his commander recommended that he be discharged
under the provision of AR 635-208 for unfitness and that he receive an
undesirable discharge.  On 9 September 1990, the recommendation for
separation was approved by the appropriate authority.

7.  On 21 September 1960, the applicant was issued an Undesirable Discharge
Certificate for unfitness.  The DD Form 214 he was issued shows that he had
completed 8 months and 19 days of active service and accrued 110 days time
lost.

8.  The applicant applied to the Army Discharge Review Board (ADRB) twice.
Those requests were denied on 14 February 1961 and on 20 March 1981.

9.  Army Regulation 635-208, then in effect, set forth the policy for
administrative separation for unfitness (misconduct).  Paragraph 1c(1) of
the 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, 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.

10.  Army Regulation 635-200 (Personnel Separation), 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.
11.  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.

12.  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 Regulation 15-185, 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 requests that his undesirable discharge be upgraded.

2.  This Board concurs with the ADRB, that the applicant's repeated
offenses and the seriousness of his AWOLs certainly warranted an
undesirable discharge.

3.  The applicant's discharge was processed in accordance with the
applicable regulations in effect at the time with no indication of any
error which may have affected the rights of the applicant.

4.  The applicant statement indicating that he was not given a trial is
noted.  However, his records show that he was afforded the opportunity to
present his case before a board of officers, and he waived that right.

5.  His discharge was accomplished in compliance with applicable
regulations and there is no indication of procedural errors or injustice
that would tend to jeopardize his rights.  The available evidence justifies
the issuance of an undesirable discharge; therefore, he is not entitled to
an honorable or general discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 March 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on  
19 March 1984.  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

____jmm_  ____pms  ___kan___  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.




                                  _________Kathleen A. Newman______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006487                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061219                                |
|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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