RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 July 2007
      DOCKET NUMBER:  AR20070001305


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Ms. Ernestine I Fields            |     |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 discharge be upgraded. 

2.  The applicant states, in effect, that he found out his mother was
addicted to prescription drugs when he was home on leave from basic
training but he was unable to help her.  The applicant also stated, in
effect, that after reporting to AIT he was given emergency leave to see his
mother and never returned to the military.  The applicant concluded that he
was young, only being 17 years old and confused but now has his life on
track.

3.  The applicant submits a self authored statement in support of his
application. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error which
occurred on 13 November 1963.  The application submitted in this case is
dated 15 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 enlisted in the Regular Army on 27 February 1962 for a
period of 3 years.  He did not complete the required training; therefore,
he retained his Military Occupational Specialty (MOS) 006.00 (Basic
Trainee).  The highest rank he attained while serving on active duty was
Private (PV2), pay grade E-2.

4.  On 9 August 1962, the applicant was convicted by a special court-
martial (SPCM) of being absent without leave (AWOL) on or about 23 July
1962 and remaining absent until 31 August 1962.  His sentence consisted of
hard labor with confinement for 3 months, a  forfeiture of $28.00 pay per
month for
5 months, and a reduction to the grade of Private (E-1). 



5.  On 25 February 1963, the applicant was convicted by a SPCM of being
AWOL from on or about 27 October 1962 and remaining absent until 7 November
1962 and on or about 25 November 1962 and remaining absent until 14 January
1963.  His sentence consisted of hard labor with confinement for 5 months
and a forfeiture of $40.00 pay per month for 5 months. 

6.  On 12 February 1963, a Mental Status Evaluation and a physical
examination cleared the applicant for separation.

7.  On 3 April 1963, the applicant acknowledged receipt of the commander’s
recommendation and proposed actions under the provisions of Army Regulation
635-208.  The applicant waived consideration of his case by a board of
officers and elected not to provide a statement in his own behalf. 

8.  On 11 April 1963, the applicant's commander recommended that the
applicant be discharged under the provisions of Army Regulation 635-208.
The commander’s recommendation was based on the fact the applicant
demonstrated habits and traits of character that were incompatible with
military standards of conduct.  The commander further stated that the
applicant consistently failed to perform his assigned duties and was a
constant disciplinary problem to his superiors and he was a troublemaker
with no respect for his contemporaries. 

9.  The applicant also acknowledged that he understood that, if an
Undesirable Discharge Certificate were issued, he could be deprived of many
or all Army benefits; that he could be ineligible for many or all Veterans
Administration benefits; and that he may expect to encounter substantial
prejudice in civilian life because of an under other than honorable
conditions discharge. 

10.  On 7 May 1963, the appropriate authority approved the recommendation
to administratively separate the applicant and directed that he receive an
undesirable discharge under the provisions of Army Regulation 635-208 for
unfitness.  On 8 November 1963, the applicant was discharged with an
undesirable discharge and a characterization of service as under other than
honorable conditions.  He completed 5 months, and 15 days of active service
and 267 days of lost time.  





11.  Item 11c (Reason and Authority) of the applicant's DD Form 214
contains the entry SPN 28B.  Army Regulation 635-5 (Separation Documents)
shows that the SPN code 28B is authorized for separations under the
provisions of Army Regulation 635-208 with the following associated
narrative reason:  "Involved in frequent incidents of a discreditable
nature with civil or military authorities.

12.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

13.  Army Regulation 635-208, then in effect, set forth the policy for
administrative separation for unfitness (misconduct).  Paragraph 1c(1) of
the regulation provided, in pertinent part, for the separation of personnel
where there was evidence of an antisocial or amoral trend, chronic
alcoholism, criminalism, drug addiction, pathological lying, or
misconduct.  Action to separate an individual was to be taken when, in the
judgment of the commander, it was clearly established that rehabilitation
was impractical or was unlikely to produce a satisfactory Soldier.  When
separation for unfitness was warranted, an undesirable discharge was
normally issued. 

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual. 

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier's separation specifically allows such
characterization. 

DISCUSSION AND CONCLUSIONS: 

1.  The applicant’s contentions were carefully considered and found to be
insufficient in merit.




2.  The evidence of record shows that the applicant was tried and convicted
by
two SPCMs.

3.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Therefore, he is not entitled to an honorable or
general discharge.

4.  The evidence of record confirms that all requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  The record further shows the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

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

6.  Records show that applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1963; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
7 May 1966.  The applicant did not file within the 3-year statue of
limitations and has not provided 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 
___ENA__ ___SWF_  ____EIF__ 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.




                                          _Eric N. Andersen______
                                            CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20070001305                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/07/03                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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