RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 March 2007
      DOCKET NUMBER:  AR20060012713


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Roland S. Venable             |     |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 (UD)
be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, his discharge should be upgraded due
to his age at the time he served and based on the circumstances surrounding
the mistake he made during that period.

3.  The applicant provides 11 Third-Party Letters in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 April 1966, the date of his discharge.  The application
submitted in this case is dated 13 August 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 record shows he enlisted in the Regular Army and
entered active duty on 25 September 1964, at the age of 18 years and 10
months.  He was trained in, awarded, and served in military occupational
specialty (MOS) 11F (Infantry Indirect Fire Crewman), and the highest rank
he attained while serving on active duty was private/E-2 (PV2).  It also
shows that during his active duty tenure, he earned the Armed Forces
Expeditionary Medal-Dominican Republic,
Parachutist Badge, and Combat Infantryman Badge-Dominican Republic.

4.  The applicant's disciplinary history includes Special Court-Martial
(SPCM) convictions on 3 August 1965 and 2 March 1966; a Summary Court-
Martial (SCM) conviction on 14 April 1965; and his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on 5 June 1965.

5.  On 5 June 1965, the applicant accepted NJP for sleeping on guard duty
in Santo Domingo, Dominican Republic, on or about 30 May 1965.  His
punishment for this offense was a forfeiture of 7 days of base pay.
6.  On 3 August 1965, a SPCM found the applicant guilty of violating
Article 96 of the UCMJ by sleeping on his guard post on or about 23 July
1965.  The resultant sentence was confinement at hard labor for six months,
forfeiture of $55.00 per month for sic months, and reduction to private/E-1
(PV1).

7.  On 14 April 1965, a SCM found the applicant guilty of violating Article
86 of the UCMJ by being absent without leave (AWOL) from on or about 15
March through on or about 3 April 1965.  The resultant sentence was
performance of hard labor without confinement for 30 days and a forfeiture
of $55.00.

8.  On 1 September 1965, after being notified by his commander that he was
contemplating taking separation action on the applicant under the
provisions of Army Regulation 635-208 for unfitness and being advised of
his rights, the applicant completed statement confirms he had been
counseled and advised of the basis for the separation action being
contemplated.  He further indicated that he was afforded the opportunity of
requesting counsel, but he declined this offer. He also indicated that he
was not requesting a hearing by a board of officers, and he did not desire
to submit a statement in his own behalf.  He also acknowledged that he
could be given an UD and that this could result in his being deprived of
many or all rights as a veteran under both State and Federal law, and that
he could expect to encounter substantial prejudice in civilian life in
situations where the type of service rendered or type of discharge received
could have a bearing.

9.  On 20 October 1965, the applicant's unit commander submitted a request
for the applicant's discharge under the provisions of Army Regulation 635-
208, based on the applicant's frequent breaches of conduct and discipline,
untrustworthiness, and lack of regard for the rights of others.  The unit
commander also indicated that the applicant did have the capacity to absorb
training and could do a credible job if and when he personally desired to
do so.

10.  On 22 November 1965, while his separation action was being processed,
the applicant departed AWOL from his organization.

11.  On 28 December 1965, the separation authority approved the applicant's
discharge and directed he receive an UD.

12.  On 9 February 1966, the applicant returned to military control at Fort
Dix, New Jersey.

13.  On 2 March 1966, a SPCM found the applicant guilty of violating
Article 86 of the UCMJ by being AWOL from on or about 22 November 1965
through on or about 9 February 1966.  The resultant sentence was
confinement at hard labor for six months and a forfeiture of $30.00 per
month for six months.
14.  On 28 April 1966, the applicant was released from confinement, and on
29 April 1966, he was separated with an UD under the provisions of Army
Regulation 635-208, by reason of unfitness (frequent involvement in
incidents of a discreditable nature with civil and military authorities).
The separation document (DD Form 214) he was issued confirms he completed a
total of
11 months and 21 days of creditable active military service, and had
accrued
226 days of time lost due to AWOL and confinement.

15.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.

16.  The applicant provides 11 third-party statements, which all attest to
his excellent post service conduct and contributions to his communities.
These individuals also confirm the applicant is in need of medical care,
which he is seeking to receive from a Department of Veterans Affairs
medical facility.

17.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel who were found unfit or
unsuitable for further military service. The regulation provided, in
pertinent part, that members who displayed undesirable habits and traits
were subject to separation for unfitness.  An UD was normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded
because of his age and the circumstances that existed at the time of his
service; and because he is in need of medical assistance from the VA were
carefully considered.  However, there is insufficient evidence to support
these claims.

2.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation in effect at
the time.  All requirements of law and regulation were met and his rights
were fully protected throughout the separation process.  Further, the
applicant's discharge accurately reflects his overall record of service.

3.  The applicant's excellent post service conduct and significant
accomplishments, as described in the third-party statements provided are
truly noteworthy; and his current medical situation is unfortunate.
However, these factors, given the applicant's short and undistinguished
record of service, which is defined by his disciplinary history, are not
sufficiently mitigating to support granting the requested relief.

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 should have discovered the alleged error or
injustice now under consideration on 29 April 1966, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 28 April 1968.  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

___JEA__  __SWF__  __RSV__  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 E Anderholm ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012713                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/06                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1966/04/29                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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