RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           24 FEBRUARY 2004                   
	DOCKET NUMBER:   AR2003091392

	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	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Lawrence Foster		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 records be corrected by upgrading his discharge.

2.  The applicant states that when he was thrown out of the Army he was depressed and just wanted to go home.  He was having family problems, his wife had just given birth to a new baby, and he had been in Germany for 13 months and just wanted out of the Army.  He feels he made a mistake and has been justly punished for the offense and feels his post service conduct merits a change. 

3.  The applicant provides three character references in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
12 March 1965.  The application submitted in this case is dated 15 May 2003.  

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 limitation 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 originally enlisted in the Alabama Army National Guard on 
5 February 1960 for a period of 3 years.  On 1 March 1962 he was discharged from the Army National Guard and immediately enlisted in the Regular Army on 
2 March 1962, for a period of 6 years.  

4.  Between November 1963 and January 1965 he accepted 7 nonjudicial  punishments, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL), missing bed check, failure to repair, being disrespectful to a commissioned officer, breaking restriction, and for being absent from his place of duty.  His punishments included restriction, extra duty, forfeitures, reductions, and an oral reprimand.

5.  On 25 January 1965, his commander recommended that he be separated from military service under the provisions of Army Regulation 635-208, for unfitness.  

6.  On 26 January 1965, a Medical Officer’s Report determined that the applicant had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. 

7.  On 8 February 1965, his company commander recommended that he be discharged from the service under the provisions of Army Regulation 635-208, for unfitness.  He stated that the applicant had been a constant deterrant to the morale and discipline of all personnel who came in contact with him, and that he had complete disregard for rank or position.  All efforts to make a soldier of him were futile, and he refused to conform to the requirements of the service.  

8.  On 9 February 1965, after consulting with counsel, the applicant acknowledged that he was aware of his rights and that he could be issued an undesirable discharge certificate.  He waived a hearing before a board of officers, waived his right to counsel, and declined to submit a statement in his own behalf. 

9.  On 15 February 1965, the applicant was barred from reenlisting.

10.  On 18 February 1965, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-208, for unfitness, and directed his reduction to the lowest enlisted grade and the issuance of an undesirable discharge.

11.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  An undesirable discharge was normally considered appropriate.  

12.  Letters of support submitted on behalf of the applicant attest to his being a  hard worker who always supports his family, and one who is well liked by family and friends in the community.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.
2.  The applicant declined counsel, waived his right to a hearing before a board of officers, declined to submit statements in his own behalf, and acknowledged that he understood the effects of an undesirable discharge.  

3.  While the Board has taken cognizance of the applicant's good post-service conduct, and his acknowledgement that he made a mistake, these factors do not warrant the relief requested.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 March 1965; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
11 March 1968.  However, 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __MVT __  __LF  ___  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.

		Raymond V. O'Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID	AR2003091392	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040224	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.