RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 September 2005
      DOCKET NUMBER:  AR20040011610


      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. James C. Hise                 |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 discharge be upgraded.

2.  The applicant states that his father died and his mother could not cope
so he enlisted at age 16.  He states he was too young to serve in the Army
and is asking for some relief to obtain Department of Veterans Affairs (VA)
benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 April 1958.  The application submitted in this case is dated
1 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 records show he enlisted with parental permission in
the National Guard on 28 February 1954 at the age of 16 years and 6 months.
 He was released to enlist in the Regular Army and entered active duty
30 September 1955.  He completed training and was awarded the military
occupational specialty (MOS) 111.00 (Light Weapons Infantryman).

4. The applicant served in Korea from 19 March 1956 through 14 June 1957.
His conduct and efficiency ratings are reported as excellent or good for
this period.

5.  The applicant went AWOL (absent without leave) on 11 October 1957 and
was arrested by civilian authorities on 20 October 1957.

6.  The applicant was held by civilian authorities for one day and returned
to military control on 22 October 1957.  He was placed in military
confinement for three days.  He was released to the US Marshals Service on
25 October 1957, and placed in civilian confinement pending a civilian
criminal trial.
7.  On 3 December 1957, the applicant was convicted, in accordance with his
pleas, of two counts of vehicular theft and one of burglary.  He was
sentenced to be confined at the Federal Correctional Institution, Ashland,
Kentucky until discharged by the Youth Correction Division of the Board of
Parole.  The specific period the applicant spent in confinement is not of
record.

8.  The Office of the Provost Marshal completed an investigation into the
charges and administrative actions in relation to the civilian charges and
court findings on 15 January 1958.  It found that the applicant's case had
been properly handled.

9.  On 19 February 1958, the applicant's unit commander recommended he be
discharged under the provisions of Army Regulation 635-206, Section IV, for
civilian conviction of a criminal offense.

10.  On 20 March 1958 the discharge authority approved the discharge
recommendation and directed he be discharged under the provisions of Army
Regulation 635-206.

11.  The applicant was discharged on 15 April 1958 with an undesirable
discharge.  He had 2 years, 7 months, and 13 days of creditable service
with 187 days of lost time.

12.  There is no indication the applicant applied to the Army Discharge
Review Board within its 15 year filling statute of limitations.

13.  Army Regulation 635-206, then in effect, provided that an enlisted
member who was convicted by a civilian court of an offense for which the
authorized punishment under the UCMJ included confinement of 1 year or more
was to be considered for elimination.  The requirement for a board of
officers could be waived by the separation authority provided the
individual concerned was physically in civil custody at the time.  When
such separation was warranted an undesirable discharge was considered
appropriate.

14.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under either Article 121
(Larceny of property other than military property of a value of more than
$500 or any motor vehicle, aircraft, vessel, firearm, or explosive) or
Article 129 (Burglary).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was young and immature at the time
is not sufficiently mitigating to warrant relief.  The Board notes that
while the applicant was 16 years of age, he had satisfactorily completed
training and had served for over a year before any negative incidents are
documented.  His satisfactory performance demonstrates his capacity to
serve and shows that he was neither too young nor immature.

2.  Entitlement to VA benefits is not within the preview of this Board nor
is it normally considered a basis for granting relief.

3.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  The character of the discharge is
commensurate with the gravity of the offenses charged.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 April 1958; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 14 April 1961.  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

__JCH___  __TEO__  __PHM__  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.




                                  __       James C. Hise________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011610                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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