RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 March 2007
      DOCKET NUMBER:  AR20060012295


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that the Army breeched his contract by
not providing him the training and schooling he enlisted for.

3.  The applicant provides a self-authored statement and Certification of
Military Service (NA Form 13038) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 October 1959, the date of his discharge.  The
application submitted in this case is dated 19 July 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 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, this
case is being considered using reconstructed records, which primarily
consist of the NA Form 13038 provided by the applicant.

4.  The applicant's NA Form 13038 shows that he enlisted in the Regular
Army and entered active duty on 29 November 1957, and that he served until
receiving an UD on 14 October 1959.

5.  The facts and circumstances surrounding the applicant's separation
processing are not on file, and there are no military records available to
review regarding the overall character of his service.

6.  The applicant provides a statement in which he indicates that after
completing basic training and jump school, he was assigned to the 77th
Special Forces, where he performed common duties while awaiting training in
a specialty.  He claims that after a time, the only training options he was
given was to attend training as a clerk typist, truck driver, cook.  He
states that feeling betrayed, he began a prolonged effort of going absent
without leave (AWOL) and returning to face punishment until he could be
discharged.  He claims this was his form of protest for being denied the
training opportunities agreed upon.

7.  There is no indication in the available National Personnel Records
Center (NPRC) file that the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year
statute of limitations.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the Army Board for Correction
of Military Records (ABCMR).  Chapter 2, Section I, contains guidance on
the establishment and functions of the ABCMR.  Paragraph 2-2 states, in
pertinent part, that the ABCMR considers individual applications that are
properly brought before it, and in appropriate cases, it directs or
recommends correction of military records to remove an error or injustice.

9.  Chapter 2, Section III, of the ABCMR regulation contains guidance on
ABCMR actions.  Paragraph 2-9 contains guidance on the burden of proof and
states, in pertinent part, that the ABCMR begins its consideration of each
case with the presumption of administrative regularity, that is that what
the Army did was correct.  The applicant has the burden of proving an error
or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded
because he was denied training opportunities he was promised was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  The available evidence and the independent evidence provided by the
applicant does not include an enlistment contract, or any other documents
that confirm the training promised the applicant in conjunction with his
enlistment.  As a result, there is insufficient evidence to support the
applicant's claim that his contract was breeched by the Army.

3.  By regulation, the ABCMR begins its consideration of each case with the
presumption of administrative regularity, that is what the Army did was
correct.  The burden of proving an error or injustice by a preponderance of
the evidence rests with the applicant.

4.  The available evidence does not include a separation packet containing
the specific facts and circumstances surrounding the applicant's separation
processing.  However, it does contain an NA Form 13038 that confirms the
applicant received an UD on 14 October 1959.  Absent any evidence of an
error or injustice related to the applicant's discharge, there is a
presumption that his separation processing was accomplished in accordance
with applicable regulations and that his rights were protected throughout
the separation process.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 October 1959, the date of his
discharge. Therefore, the time for him to file a request for correction of
any error or injustice expired on 13 October 1962.  He failed to 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

___WDP_  ___PMS _  __JLP __  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.




                                  _____William D. Powers____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012295                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/13                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1959/10/14                              |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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