RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            09 January 2007
      DOCKET NUMBER:   AR20060009374


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Mr. Scott Faught                  |     |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 fully
honorable.

2.  The applicant states that he needs to apply for an automobile discount
where he resides and he is now 66 years of age and believes that his
discharge should be honorable.  He further states that it has been 45 years
since his discharge and he desires to have his discharge upgraded to obtain
better benefits.

3.  The applicant provides a copy of his report of separation (DD Form
214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 September 1961.  The application submitted in this case is
dated 20 June 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 in Brooklyn, New York on 26 November 1957 for a
period of 3 years.  He completed his basic combat training at Fort Dix, New
Jersey and his advanced individual training (AIT) as a cannoneer at Fort
Sill, Oklahoma.

4.  He was transferred to Hanau, Germany on 7 June 1958 for assignment to a
howitzer battery.  He was advanced to the pay grade of E-3 on 26 March
1959.

5.  On 19 August 1960, he was convicted, pursuant to his plea, by a general
court-martial of assaulting a military policeman with his fists and of
breach of peace.  He was sentenced to confinement at hard labor for 12
months, a forfeiture of pay for 12 months and reduction to the pay grade of
E-1.

6.  He was transferred to the United States Disciplinary Barracks at Fort
Leavenworth, Kansas to serve his confinement while pending appellate review
by the Office of The Judge Advocate General (OTJAG).  On 16 January 1961,
the OTJAG affirmed the findings and sentence as approved by the convening
authority,

7.  On 7 June 1961, the applicant was restored to duty at Fort Bliss,
Texas, where he remained until he was discharged under honorable conditions
due to the expiration of his term of service (ETS).  He had served 3 years
and 1 day of total active service and had 291 days of lost time due to
confinement.

8.  Army Regulation 635-200, in effect at the time, provided that a general
discharge is a separation from the Army under honorable conditions of an
individual whose military record is not sufficiently meritorious to warrant
an honorable discharge.  A general discharge may be issued if an individual
has been convicted of an offense by general court-martial or has been
convicted by more than one special court-martial during the current
enlistment.

DISCUSSION AND CONCLUSIONS:

1.  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 that requirement.

2.  In the absence of evidence to the contrary, it must be presumed that
the  applicant’s separation was accomplished in compliance with applicable
regulations with no indication of procedural errors which would tend to
jeopardize his rights.

3.  Accordingly, the type of discharge directed and the characterization of
his service was appropriate under the circumstances.  The applicant’s
service simply does not rise to the level of a fully honorable discharge.


4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 September 1961; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 12 September 1964.  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

___JA___  ___JP___  ___SF __  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.




                                  ____James Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009374                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1961/09/13                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Ets                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |455/a03.00/ets                          |
|1.144.0300              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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