RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 September 2005
      DOCKET NUMBER:  AR20040010933


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |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 dishonorable discharge (DD) be
upgraded.

2.  The applicant states, in effect, that he was inducted with asthma and
he went AWOL because he was not receiving any medication for this
condition.  He indicates he needs an upgrade to get medical assistance.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 December 1953, the date of his discharge.  The application
submitted in this case is dated 3 December 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 service records were damaged in the fire at the
National Personnel Records Center in 1973.  Many of the documents have
illegible entries or are stuck together.  However, the majority of his
record is sufficiently legible to allow the Board to conduct a fair and
impartial review of this case.

4.  The available records show he had a pre-induction physical examination
on 15 April 1952. The applicant was 21 years old at the time and reported
that his last attack of asthma had occurred at age 15.  A letter from his
family physician indicated the last date of an asthma attack that he was
aware of occurred when the applicant was 9 years old.  The medical
examination conducted at that time found no abnormalities.

5.  The applicant entered active duty on 14 August 1952 and went AWOL
(absent without leave) on 11 September 1952.


6.  A 19 January 1953 special court martial found the applicant guilty
under Article 86, Uniform Code of Military Justice (UCMJ) of being AWOL
from 11 September 1952 through 24 December 1952.  His sentence was
confinement in the post stockade for four months and forfeiture of $50.00
pay per month for four months.

7.  The applicant was in pre-trial confinement or serving his court-martial
sentence from 25 December 1952 until he escaped from confinement on
1 February 1953.  He was dropped from the unit rolls and considered to be a
deserter as of that date.

8.  Special Agents of the Federal Bureau of Investigation (FBI) apprehended
the applicant on 6 November 1953.

9.  Upon his return to military control, he was again placed in confinement
and general court-martial charges were preferred.

10.  On 25 November 1953 he was found guilty of violation of Article 95,
UCMJ, escape while in confinement, and Article 85, UCMJ, desertion.  He was
sentenced to forfeiture of all pay and allowances, confinement for 2 years
and 8 months, and a DD.

11.  Headquarters, 9th Infantry Division General Court-Martial Orders 224,
dated 1 December 1953, approved the court-martial findings and sentence.
It also directed that the proceedings, findings, and sentence be referred
to a board of review.

12.  Headquarters, 9th Infantry Division General Court-Martial Orders 241,
dated 17 December 1953, affirmed the findings and sentence except for a
reduction in the period of confinement to two years.  It directed that the
remainder of the sentence be executed.

13.  The applicant was discharged on 23 December 1953 with a DD.  He had
only 28 days of creditable service with 475 days of lost time.

14.  On 20 April 1954, the applicant applied for restoration to duty.

15.  A 18 June 1954 DD Form 212 (Factual Data for Restoration, Clemency and
Parole Review) indicates the applicant's stated reason for going AWOL, and
for escaping confinement, was that he was not receiving any medication for
his asthma and he got fed up.  A medical and psychiatric evaluation
conducted in concert with his parole hearing found the applicant suffered
from chronic asthma and mild emotional immaturity.

16.  During the Clemency and Parole review the applicant's mother submitted
a statement that indicated the applicant had previously applied for
enlistment in the Air Force but had been considered 4F (not qualified for
enlistment) due to his asthma.

17.  The Clemency and Parole Board voted unanimously to deny him
restoration to duty, clemency, or parole.

18.  A review of the available service medical records does not indicate
the applicant complained of or was treated for his asthma prior to his
first period of confinement.

19.  The statutory authority under which this Board was created (Title 10,
United States Code, section 1552, as amended) precludes any action by this
Board that would disturb the finality of a court-martial conviction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was on active duty for less than one month before he went
AWOL.  The remainder of his period of service was spent in either an AWOL
status or in confinement.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.  The 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.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 December 1953; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 December 1956.  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

__CAK__  ___JNS__  __ENA__  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.




                                  __         John N. Slone_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010933                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050915                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0055 GCM for Desertion              |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]