RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 March 2008
      DOCKET NUMBER:  AR20070017087


      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. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 he feels his punishment was more
than he deserved, and he was only reacting to being attacked by two other
Soldiers as he was trained to do.

3.  The applicant provides no documentary evidence 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 record shows that he was inducted into the Army and
entered active duty on 14 March 1963.  The applicant's Enlisted
Qualification Record
(DA Form 20) shows that he completed the 8-week Food Service course at
Fort Knox, Kentucky, and was awarded military occupational specialty (MOS)
940.07 (Food Service Helper) on 3 July 1963.

3.  Section I (Appointments, Promotions, or Reductions) of the applicant's
Service Record (DA Form 24) shows the applicant was promoted to private
first class (PFC) on 9 July 1964, and that this is the highest rank he held
while serving on active duty.  It also shows he was reduced to private/E-2
(PV2) on 6 November 1964 and to private/E-1 (PV1) on 23 December 1964.

4.  The applicant's disciplinary record includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on three separate occasions, and his
conviction by a Special Court-Martial (SPCM).

5.  On 12 December 1963, the applicant accepted NJP for failing to go to
his appointed place of duty at the prescribed time.  His punishment was 14
days of restriction and extra duty.

6.  On 19 October 1964, the applicant accepted NJP for being absent without
proper authority.  His punishment for this offense was 14 days restriction
and extra duty.

7.  On 3 November 1964, the applicant accepted NJP for being absent without
leave (AWOL).  His punishment for this offense was a reduction to PV2.

8.  On 23 December 1964, a SPCM found the applicant guilty of violating the
following articles of the UCMJ by committing the offenses indicated:
Article 86
(2 Specifications) by absenting himself from his appointed place of duty
without authority and by failing to go to his appointed place of duty at
the prescribed time; Article 90, by willfully disobeying the lawful command
of a superior commissioned officer; Article 91, by being disrespectful in
language toward a superior noncommissioned officer (NCO); Article 95, by
breaking arrest; and Article 134
(4 Specifications), by breaking restriction on three separate occasions and
by wrongfully communicating a threat.  The resultant sentence was
confinement at hard labor for six months and a forfeiture of $28.00 per
month for six months.

9.  On 27 March 1965, the unit commander recommended the applicant be
eliminated from the service under the provisions of Army Regulation 635-
208.  In his statement, the commander cited the applicant's numerous
offenses, which included his being absent without leave (AWOL) twice, for
which he received two Article 15s and his SPCM conviction for numerous
offenses.  He indicated that the applicant had a general disregard for good
conduct and discipline.  He further stated that the applicant had been
counseled by him on several occasions. But to no avail.

10.  On 29 March 1965, the unit notified the applicant that he was
recommending his elimination from the service under the provisions of Army
Regulation 635-208, and that the applicant be issued an UD.  The applicant
acknowledged his receipt of the notification, and confirmed he had been
advised of his rights associated with the action.  The applicant completed
an election of rights, in which he requested his case be considered by a
board of officers and expressed his desire for counsel.

11.  On 3 May 1965, a board of officers convened to consider the
applicant's case.  The applicant and his counsel were present.  After
considering all the evidence and testimony, the board of officers found
that the applicant was guilty of having been directly involved in frequent
incidents of a discreditable nature with military authorities and showed an
established pattern for shirking.  It further found the applicant had
exhibited an inability to conform, accept standards and leadership imposed
by the service.  The board of officers finally recommended the applicant be
eliminated from the service under the provisions of Army Regulation 635-
208, and that he receive an UD.

12.  On 29 May 1965, the separation authority approved the board of
officers’ findings and recommendations, and directed the applicant be
separated under the provisions of Army Regulation 635-208, by reason of
unfitness.  The separation authority also directed the applicant receive an
UD and that he be reduced to the lowest enlisted grade.  On 17 June 1965,
the applicant was discharged accordingly.

13. The DD Form 214 issued to the applicant on 17 June 1965 shows he
completed a total of 1 year, 9 months and 24 days of creditable active
military service and that he accrued 160 days of time lost due to AWOL and
confinement. It also shows he earned the Parachutist Badge and Expert
Marksmanship Qualification Badge with Rifle Bar during his active duty
tenure.  His record 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.

14.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) requesting an upgrade of his discharge within
the ADRB's 15-year statute of limitations.

15.  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 contention that his discharge was too harsh and that
his separation was based on an incident where he was only responding as he
was trained to an attack by two other Soldiers was carefully considered.
However, there is insufficient evidence to support this claim.

2.  The evidence of record shows the applicant had an extensive
disciplinary history that included his acceptance of NJP on three separate
occasions and his conviction of several offenses by a SPCM.  As a result,
it is clear that his discharge was not based on one isolated incident.

3.  The applicant's discharge processing was accomplished in accordance
with the applicable regulation.  All requirements of law and regulations
were met
and the rights of the applicant were fully protected throughout the
separation process.  His record documents no acts of valor, significant
achievement or service warranting special recognition and as a result his
discharge accurately reflects his overall record of undistinguished
service.  His 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.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LDS __  __ECP __  __DLL___  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.




                                  _____Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070017087                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/03/DD                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1965/06/17                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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