RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 May 2005
      DOCKET NUMBER:  AR20040006378


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 clemency in the form of an
honorable discharge be granted.

2.  The applicant states, in effect, that he was unjustly sent to prison on
a conviction by general court-martial for larceny which he considered was
too excessive.  He continues that he made a big mistake for accepting
stolen clothes from another Soldier who took them from a company that was
in the field during basic training.

3.  The applicant further states that he and two other Soldiers were
charged with larceny.  He states that his civilian defense attorney
represented all three of them as a group at trial.  The defense attorney
induced them to lie in court that they had been mistreated in the barracks
while awaiting the completion of the investigation.  The defense attorney
subsequently was disbarred.

4.  The applicant states that he believes the incident was taken against
them
at their court-martial.  He concludes that 50 years have passed and he
never asked for mercy or clemency because revisiting the incident causes
him a traumatic problem.  He continues that his health is not the best and
when the time comes he wants to have his coffin covered with the American
flag.

5.  The applicant provides a DD Form 214 (Report of Separation from the
Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 October 1955.  The application submitted in this case is
dated 18 August 2004.

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 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.  In addition, the
record of his trial by court-martial was available.

4.  The applicant was inducted in the Army on 12 March 1953.  He did not
successfully complete basic training.

5.  A DD Form 458 (Charge Sheet), dated 29 July 1953, shows charges were
preferred against the applicant for three specifications of larceny.

6.  On 2 December 1953, the applicant was convicted, contrary to his plea
in a joint trial, by a general court-martial of three specifications of
larceny.  His approved sentence consisted of a forfeiture of all pay and
allowances, confinement at hard labor for three years, and a dishonorable
discharge

7.  On 19 April 1954, the Department of the Army, Office of The Judge
Advocate General, Board of Review affirmed the applicant's sentence and the
finding of guilty.

8.  On 8 October 1955, the applicant was separated from the Army with a
dishonorable discharge.

9.  In accordance with Title 10 of the United States Code, section 1552,
the authority under which this Board acts, the Army Board for Correction of
Military Records is not empowered to set aside a conviction.  Rather it is
only empowered to change the severity of the sentence imposed in the court-
martial process and then only if clemency is determined to be appropriate.
Clemency is an act of mercy, or instance of leniency, to moderate the
severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of
the offense for which he was charged and convicted.  Conviction and
discharge were effected in accordance with applicable law and regulations,
and the discharge appropriately characterizes the misconduct for which he
was convicted.



2.  By law, the Army Board of Correction for Military Records may not
disturb the finality of a court-martial.  The Board is only empowered to
change a discharge if clemency is determined to be appropriate to moderate
the severity of the punishment imposed.

3.  The applicant's entire record of service was considered in this case.
However, due to the brevity of his service and given the seriousness of the
offense for which he was convicted, it is determined that clemency is not
warranted in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 October 1955, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 7 October 1958.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___ JS___  __ RLD__  __ CD __  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.




                                  ____ John Slone ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006378                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |17 May 2005                             |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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