RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 February 2006
      DOCKET NUMBER:  AR20050010258



      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Dennis J. Phillips            |     |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 discharge.

2.  The applicant states, in effect, his undesirable discharge (UD)
discharge was upgraded to a general, under honorable conditions discharge
(GD)

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 July 1958.  The application submitted in this case was
received on 18 June 2005.

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 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 include a
Certification of Military Service (NA Form 13038) and Discharge Orders; and
the DD Form 214 provided by the applicant.

4.  The NPRC file pertaining to the applicant includes Headquarters, United
States Army Personnel Center, Fort Dix, Fort Dix, New Jersey Special Orders
Number 197, dated 16 July 1958.  These orders directed the applicant’s UD
under the provisions of Army Regulation 635-208, Separation Program Number
(SPN) 387 (Unfitness-habits or traits of character manifested by
misconduct) on 18 July 1958.  There are no documents or records on file
that indicate these orders were ever amended or revoked by proper
authority.

5.  The NA Form 13038 on file, dated 9 March 2005, pertaining to the
applicant shows he served on active duty as a member of the Enlisted
Reserve Corps from 17 August 1956 through 18 July 1958, at which time he
received an UD.

6.  The applicant provides a poor copy of a DD Form 214 that appears to
have been altered in support of his application.  In a portion of this
document that appears to have been inserted into an original DD Form 214,
it shows the applicant was separated under the provisions of paragraph 2,
Army Regulation 635-205; however, no SPN identifying the specific reason
for separation is included.

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that his discharge was upgraded from a UD to a
GD, and the support document he submitted were carefully considered.
However, there is insufficient evidence to support granting the requested
relief.

2.  The applicant’s NPRC file contains a copy of the orders that directed
his UD on 18 July 1958, under the provisions of Army Regulation 635-208,
for Unfitness (habits or traits manifested by misconduct).  There are no
orders, or other documents on file that indicate these orders were ever
amended, or revoked.  In addition, the NA Form 13038 on file, dated 9 March
2005, confirms he received an UD on 18 July 1958.

3.  The DD Form 214 provided by the applicant appears to have been altered.
 In addition, there is no indication that the applicant’s discharge was
ever upgraded by either this Board, or the ADRB, or by any other proper
authority.  Therefore, this clearly altered DD Form 214 is not sufficiently
convincing to support an upgrade of his discharge at this late date.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 July 1958, the date of his
discharge. Therefore, the time for him to file a request for correction of
any error or injustice expired on 17 July 1961.  However, 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

___YM __  ___MJF _  __DJP___  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.




            ____Yolanda Maldonado___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050010258                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/02                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1958/07/18                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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