RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 December 2006
      DOCKET NUMBER:  AR20060007789


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Larry W. Racster              |     |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 to an honorable discharge.

2.  The applicant states, in effect, that when he was being recruited to
enlist in the Army he was promised by the recruiter that he would be
trained as a combat engineer.  However, after basic combat training, he was
assigned to the
350th Infantry Regiment in Austria and feels the Army broke its promise to
him.  He also states, in effect, that his only crimes while in the Army
were getting drunk and failing to return to duty at the appointed place and
time, which resulted in him receiving an undesirable discharge.  The
applicant further states, in effect, that he realizes and regrets the
mistakes he made, but also believes his discharge to be unfair.  The
applicant concludes by stating, in effect, that he has changed his life
since being discharged from the Army and offers in support of his request
for upgrade of his discharge the fact that he has been married 49 years and
raised a family, worked in a factory for 23 years, and is active in his
local church.

3.  The applicant provides a 2-page self-authored statement, dated 8 May
2006; 4 letters from friends of the applicant; Breckinridge County
Sheriff's Department, Hardinsburg, Kentucky, letter, dated 6 May 2006;
CourtNet Defendant/ Respondent Disposition document, dated 16 May 2006; and
National Archives (NA) Form 13038 (Certification of Military Service),
dated 27 April 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
3 April 1980, the date his discharge was reviewed by the Army Discharge
Review Board.  The application submitted in this case is dated 4 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 military service 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.  However,
there were sufficient documents remaining in a reconstructed record for the
Board to conduct a fair and impartial review of this case.

4.  The applicant’s military service records contain a copy of
Headquarters, U.S. Army Personnel Center Fort Dix, Fort Dix, New Jersey,
Special Orders Number 94, dated 4 April 1957.  This document shows, in
pertinent part, that the applicant was assigned to the 18th Transfer
Company, U.S. Army Personnel Center, Fort Dix, New Jersey, in the rank of
private/pay grade E-1, and discharged under the provisions of Army
Regulation 635-208 (Undesirable Discharge) on 6 April 1957.

5.  The applicant’s military service records contain a copy of NA Form
13038 (Certification of Military Service), dated 6 January 1998, issued in
the absence of a copy of the actual Report of Separation, to serve as
verification of the applicant's military service.  This document shows, in
pertinent part, that the applicant entered active duty in the Regular Army
(RA) on 6 June 1954 and was issued an undesirable discharge on 6 April
1957.

6.  On 18 September 1978, the applicant applied to the Army Discharge
Review Board (ADRB) and requested upgrade oh his undesirable discharge.  On
3 April 1980, the ADRB noted that the applicant's records are incomplete.
However, based on lack of information, the ADRB presumed regularity in
government operations and found the discharge proper and equitable.

7.  In support of his application to this Board, the applicant provides 4
letters of support from friends who have known him for many years.  The
letters attest to the applicant's personal character noting that he is
dependable, honest, helpful to others, and hard-working.  The letters also
indicate that the applicant has not been in any trouble with the law, has
been alcohol-free for 20 years, and that he is a good Christian man.  The
applicant also provides a letter from the local sheriff who states, in
effect, that he is not aware of any complaints, investigations, or issues
involving the applicant.

8.  Army Regulation 635-208 (Personnel Separations - Discharge -
Unfitness), in effect at that time, provides procedures and guidance in the
elimination from the service of enlisted personnel having undesirable
habits and traits of character.  The Army regulation provides, in pertinent
part, that upon determination that an
enlisted person is to be discharged from the service with an undesirable
discharge, the authority accomplishing the discharge will automatically
reduce such individual to the grade of E-1.

9.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 contends, in effect, that his undesirable discharge
should be upgraded to an honorable discharge because he has changed his
life since being in the Army and is now a good solid citizen.

2.  The applicant provided letters of support attesting to his character
and post-service conduct.  While his personal characteristics and post-
service conduct are noteworthy, the applicant's personal traits and good
post-service conduct are not sufficient to overcome his military record of
indiscipline, nor a sufficient basis for upgrading his discharge.
Therefore, the applicant provided insufficient evidence, and there is no
evidence in the available records, which supports his contention that his
undesirable discharge should be upgraded.

3.  There is a presumption of administrative regularity in the conduct of
governmental affairs.  This presumption can be applied to any review unless
there is substantial creditable evidence to rebut the presumption.
Therefore, since there is no evidence of record to show that the
applicant's undesirable discharge under the provisions of Army Regulation
615-208 was not in accordance with the Army regulatory guidance in effect
at the time, there is no basis to change his discharge.

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

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 3 April 1980.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 2 April 1983.  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

___RTD _  ___DED_  __LWR __  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.




                                           Richard T. Dunbar____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007789                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19651108                                |
|DISCHARGE AUTHORITY     |AR 635-89                               |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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