RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 February 2008
      DOCKET NUMBER:  AR20070014943


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Sherri V. Ward                |     |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, in effect, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, his commander told him that because he
did not have a high school diploma, he could get out of the Army by
accepting
non-judicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) three times.  He claims he was
unable to be promoted to next grade because he did not finish school, and
he accepted NJP on three separate occasions for being late, and as a
result, he was discharged.

3.  The applicant provides two third-party character references in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  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 (NPRC) in 1973.  It is believed
that the applicant’s records were lost or destroyed in that fire.  However,
there were sufficient documents remaining in a reconstructed record for the
Board to conduct a fair and impartial review of this case.  This case is
being considered using documents on file in the NPRC, which includes a
separation document
(DD Form 214) and unit commander request for separation.

3.  The NPRC file pertaining to the applicant includes a request for
separation submitted by his unit commander on 10 February 1958.  In this
request, the unit commander cited habits or traits of character (a social
or moral trend, alcoholism, misconduct) and habitual shirker as the reasons
for the separation request.
4.  Although the documents listed are not included with the separation
request contained in the applicant's NPRC file, the unit commander's
separation request indicates a record of previous court-martial
convictions, record of NJP and statements from the applicant's Officer in
Charge and Noncommissioned Officer in Charge were enclosed with the
request.

5.  The NPRC file also contains a DD Form 214 that confirms on 18 March
1958, the applicant was separated with an UD, in the rank of private/E-1
(PV1), under the provisions of Army Regulation 635-208, by reason of
unfitness.  It also shows that at that time, he had completed 1 year, 7
months and 19 days of active military service.  The DD Form 214 shows he
earned no awards or decorations during his active duty tenure, and it
documents no acts of valor, significant achievement, or service warranting
special recognition.  The applicant authenticated the DD Form 214 with his
signature on the date of his discharge.

6.  There is no indication that the applicant applied to the Army Discharge
Review Board (ADRB) requesting an upgrade of his discharge within that
board’s 15-year statute of limitations, or that he previously applied to
this Board.

7.  The applicant provides two third-party statements, which attest to his
excellent post service conduct and contributions to his communities.

8.  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.  While the separation authority
could grant a general, under honorable conditions discharge (GD) or
honorable discharge (HD), if warranted by the member's overall record of
service, the issue of an UD was normally considered appropriate for members
separated under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his unit commander told him he could
get out if he accepted NJP three times and that he could not be promoted
given his lack of education and the supporting statements he provided were
carefully considered.  However, there is insufficient evidence to support
these claims.

2.  The applicant’s NPRC file contains a request for separation that
indicates the applicant had an extensive disciplinary history that could
have included
court-martial convictions, and by his own admission included his acceptance
of NJP on three separate occasions.
3.  The applicant's NPRC file also contains a properly constituted DD Form
214 that contains the authority and reason for his separation, which
carries a presumption of government regulatory, and which the applicant
authenticated with his signature on the date of his discharge.  Absent
evidence to the contrary, it is presumed the applicant's separation
processing was accomplished in accordance with the applicable regulation,
and that all requirements of law and regulation were met and that the
applicant's rights were fully protected throughout the separation process.


4.  Although the applicant's post service conduct, as attested to in the
third-party statements provided, is noteworthy, this factor alone is not
sufficiently mitigating to support an upgrade of his discharge at this late
date.  The applicant's undistinguished overall record of service and
extensive disciplinary history did not support the issue of a GD or HD at
the time of his discharge, and does not support an upgrade at this time.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MKP __  __SVW      __JCR __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  ____Margaret K. Patterson____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070014943                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/DD                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1958/03/18                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfit                                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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