RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 July 2005
      DOCKET NUMBER:  AR20040006846


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 that his bad conduct discharge (BCD) be upgraded
to a honorable discharge.

2.  The applicant states that he received a letter that indicated his BCD
had been upgraded to an honorable discharge.  He also believes that he
should receive back pay if his discharge is upgraded.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 8 May 1950.  The application submitted in this case is dated 31
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 presumed lost or destroyed in the
National Personnel Records Center fire of 1973.  Information herein was
obtained from a reconstructed record and courts-martial documents.

4.  With no prior service, the applicant enlisted in the Regular Army  for
3 years on 30 September 1949.  After training at Fort Knox, Kentucky, he
was transferred to Fort Lawton, Washington on 24 February 1950 pending
overseas transfer.

5.  On 13 April 1950, the applicant was convicted by a special court-
martial for stealing a jacket, shirt and pair of trousers, of a value of
$24.65, property of the United States Government.  He was sentenced to
reduction from the rank of private to recruit, and a forfeiture of $53.00
per month for 3 months.

6.  Also while assigned to Fort Lawton, special court-martial charges were
preferred against the applicant for breaching arrest on 24 March and 8
April 1950, and for being absent without leave (AWOL) from 24-28 March 1950
and
8-11 April 1950.  On 8 May 1950, the applicant pled not guilty to all four
offenses and he was convicted of all four offenses.  He was sentenced to
confinement at hard labor for 6 months, a forfeiture of $53.33 pay per
month for 6 months, and to be discharged with a bad conduct discharge
(BCD).  On 15 May 1950, the sentence was approved except for that portion
of the sentence providing for a BCD.

7.  On 13 June 1950, the Board of Review held that the record of trial was
legally sufficient and the appropriate authority ordered the BCD to be duly
executed.

8.  The applicant's record contains an NA Form 13038 (Certification of
Military Service) that was issued on 23 August 2004.  The NA Form 13038
shows the applicant was separated on 8 May 1950 with a BCD.  Prior to being
issued this document, the applicant submitted several requests for records
and these requests show that he stated that he was separated on 13 June
1950.  It is most likely that this date is his correct separation date as
the appellate process was completed on 13 June 1950.

9.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, Section
1552, the authority under which this Board acts, the ABCMR is empowered to
change the severity of the sentence imposed in the court-martial process
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.

10.  Department of the Army Technical Manual (TM) 12-235 (Enlisted
Personnel Discharge Procedures and Preparation of Separation Forms), dated
February 1948 states that the original Enlisted Record and Report of
Separation would be provided to the individual being separated.  A copy
would be placed in the service record and the Veterans Administration
Regional Officer for the state in which the individual enlisted would be
provided a copy.

DISCUSSION AND CONCLUSIONS:

1.  Although the facts and circumstances surrounding the applicant's
service is limited, the available evidence indicates that he was separated
as a result of a special court-martial conviction with a BCD.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.  The
applicant has established no basis to grant clemency in this case.

3.  The available evidence does not show that the applicant's discharge was
ever upgraded or that he is entitled to any back pay.

4.  The applicant may be able to obtain a copy of his original separation
document from either the Veterans Administration Regional Officer or the
State Director, Office of Selective Service Records in the state from which
he enlisted.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 June 1950; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 12 June 1953.  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

__mhm___  __ena___  __cak___  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.



                                        Melvin H. Meyer
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006846                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19500508                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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