RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 June 2007
      DOCKET NUMBER:  AR20060017614


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 he was having a conflict with Sergeant W___ six
months before he was separated.  He feels his character of discharge was
too severe for the minor infractions.  He was 19 years old at that time.
Now he is an upstanding citizen, retired as a Teamster after 33 years of
service.

3.  The applicant provides three letters of support and copies of his
service personnel records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 March 1957.  The application submitted in this case is dated
5 December 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 was born on 2 October 1937.  He enlisted in the Regular
Army on 13 October 1954.  He completed basic training and advanced
individual training and was awarded military occupational specialty 140.00
(Cannoneer).  He was later awarded military occupational specialty 220.00
(Guided Missile Crewman).

4.  A DD Form 789 (Unit Punishment Record) shows that on 8 December 1955
the applicant received unit punishment for missing bed check; on 27 January
1956 he received unit punishment for missing reveille; on 11 March 1956 he
received unit punishment for being relieved from guard mount with a dirty
weapon; and on 24 October 1956 he received unit punishment for missing
reveille.

5.  A DD Form 493 (Extract of Military Records of Previous Convictions)
shows that on 17 April 1956 the applicant was convicted by a special court-
martial for possessing an unauthorized pass.  On 10 January 1957, he was
again convicted by a special court-martial for possessing an unauthorized
pass.  The sentence in the second court-martial conviction included
confinement at hard labor for six months, confinement in excess of 30 days
was suspended.

6.  On 23 January 1957, the applicant underwent a mental examination and a
separation physical examination.  His mental condition and his physical
condition were found to be normal.  No disqualifying mental or physical
defects sufficient to warrant a medical discharge were found.

7.  On 23 January 1957, the applicant’s commander recommended the applicant
be brought before a board of officers to determine whether he should be
discharged under the provisions of Army Regulation 635-208.

8.  On 30 January 1957, the applicant appeared before a board of officers.
He elected to remain silent, but his defense counsel stated that he
believed the applicant should be transferred to a different unit and felt
the applicant had been punished for his mistakes.

9.  Sergeant W___ testified that he tried to understand the applicant
although it “wasn’t a concentrated effort.”  He did not believe the
applicant would make a good Soldier.  He stated that he had never counseled
the applicant but if someone could stand over the applicant and watch him
closely the applicant might be able to Soldier.

10.  Private First Class W___ testified on the applicant’s behalf.  He
stated the applicant was a pretty good guy and that a couple of sergeants
in their battery would ride him day and night.  Upon cross examination, he
stated he did not see the sergeants ride the applicant all the time.  The
applicant told him that they had been [riding him].

11.  On 30 January 1957, the board of officers found that the applicant
gave evidence of undesirability which rendered his retention in the service
undesirable and recommended he be issued an Undesirable Discharge
Certificate because of undesirable habits or traits of character.

12.  On 4 February 1957, the appropriate authority approved the
recommendation and directed the applicant receive an Undesirable Discharge
Certificate.

13.  On 9 March 1957, the applicant was discharged, in pay grade E-1, under
the provisions of Army Regulation 635-208 for unfitness, with an
undesirable discharge and a characterization of service of under other than
honorable conditions.  He had completed 2 years, 4 months, and 5 days of
creditable active service and had 23 days of lost time (confinement).

14.  The applicant provided three letters of support.  Neighbors stated
that the applicant had been a terrific friend and neighbor over the past 32
years and that he and his wife have passed on their strong values to their
children and grandchildren.  His brother-in-law stated the applicant is the
type of person who is always willing to help others, no matter what time of
day or night, and is very family oriented.  His wife stated that she hoped
the blemish on the applicant’s military record could be cleared up.  She
stated that at the time the applicant was a teenager away from home and in
a less-than-perfect environment.

15.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness.  The
regulation provided for the discharge of individuals by reason of unfitness
with an undesirable discharge when it had been determined that an
individual’s military record was characterized by one of more of the
following:  frequent incidents of a discreditable nature with civil or
military authorities; sexual perversion; drug addiction or the unauthorized
use or possession of habit forming narcotic drugs or marijuana; an
established pattern for shirking; or an established pattern showing
dishonorable failure to pay just debts.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The applicant contended he was having a conflict with Sergeant W___ six
months before he was separated.  However, his record of misconduct started
with unit punishment on 8 December 1955, more than 15 months before he
separated.  While his infractions were relatively minor, they were
numerous.

3.  While the Board is empathetic and admires the success the applicant has
had in his civilian life and in the raising of his children, this is not
sufficiently mitigating to warrant an upgrade of his discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 March 1957; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on           8 March 1960.  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

__cd____  __mjf___  __jcr___  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.




                                  __Carmen Duncan_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017614                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070607                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19570309                                |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]