RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2005
      DOCKET NUMBER:  AR20050006059


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 his discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he was convicted in 1945 by a
civilian court for malicious assault, although he was attacked by two men.
The Governor of the state of Virginia gave him a pardon in 1984.  He had a
good record while he was in the military.

3.  The applicant provides two letters from the Commonwealth of Virginia.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not respond to notification letter to review the applicant’s
file within 30 days of notification.  Counsel provided no statements or
documents in support of the applicant’s contentions.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 2 August 1945.  The application submitted in this case is
dated
3 March 2005.

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.  This case is being
considered using reconstructed records.

4.  The applicant was inducted into the Army of the United States on
13 November 1943 for a period of 2 years.  He was trained in and awarded
military occupational specialty 522.00 (Guard Patrolman).  The highest
grade he attained was pay grade E-3.

5.  On 24 July 1945, after pleading guilty to the charge of malicious
assault by beating a man over and about the head with a black jack, thereby
causing him bodily injury with the intent to maim, disfigure, disable and
kill, the applicant was sentenced to be confined in the Virginia State
Penitentiary for a term of 2 years.
6.  On 28 July 1945, the unit commander submitted a recommendation for the
applicant’s discharge under the provisions of Army Regulation 615-366, by
reason of civil conviction.  The unit commander cited the applicant’s
conviction by a civil court as the basis for the discharge recommendation.


7.  The separation authority directed that the applicant be discharged
under the provisions of Army Regulation 615-366, by reason of civil
conviction, and directed that the applicant receive a discharge under other
than honorable conditions.  On 2 August 1945, the applicant was discharged
under the provisions of Army Regulation 615-366 by reason of conviction by
civil court.  The applicant served 9 months in the Virginia State
Penitentiary and on 15 April 1946, the applicant was released on parole.

8.  In May 1946, the applicant requested a review of his discharge by the
Secretary of War’s Discharge Review Board (DRB).

9.  On 3 April 1947, the Secretary of War’s DRB found that the applicant’s
discharge by reason of his conviction by a civil court under the provisions
of Section III, Army Regulation 615-366 was in accordance with the
regulation in force at that time.  The character of the discharge was amply
supported by the evidence of record.  The board concluded that the
application for an honorable discharge in lieu of a discharge certificate
(blue) be denied.

10.  On 12 May 1947, the War Department, The Adjutant General’s Office,
confirmed the prior action of the Secretary of War and voted to deny the
applicant’s request for a change in the type or nature of his separation.

11.  Army Regulation 615-366, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members due to civil conviction.  A Blue Discharge Certificate
that contained the authority
for discharge was issued to identify an other than honorable discharge.
The certificate contained neither a reason for the discharge or
characterization of service.

12.  On 10 August 1984, The Governor of the Commonwealth of Virginia, after
reviewing the applicant’s request for removal of political disabilities,
restored the applicant’s rights that he forfeited when he was convicted of
a felony.  While it is not a pardon, it enables the applicant to register
to vote, to run for and hold public office, and to serve on a jury.
However, it does not restore his rights to own, possess, or transport a
firearm.

13.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant was carefully considered.  However,
there is no evidence nor has the applicant presented any evidence to
support his allegation.  The Governor of Virginia restored certain civil
rights that the applicant forfeited when he was convicted of a felony.  The
restoration of certain civil rights is not a pardon.  Certain reputable
citizens who were familiar with the applicant’s conduct since his release
from prison recommended that the applicant’s civil rights be restored and
based on their recommendation and the good conduct of the applicant, the
Governor of Virginia restored certain civil rights.  Although the
applicant’s post service conduct is admirable, this factor alone is not
sufficiently mitigating to warrant an upgrade of his discharge at this
time.

2.  The evidence of record further confirms the applicant’s separation
processing was accomplished in accordance with the applicable regulation.
All requirements of law and regulation were met and the rights of the
applicant were fully protected throughout the separation process.  Further,
the applicant’s discharge accurately reflects his overall record of
service.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the Secretary of War’s DRB on
12 May 1947.  As a result, the time for the applicant to file a request for
correction or any error or injustice to this Board expired on 11 May 1950.
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

__JNS __  __LGH __  __MJF __  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                 |AR20050006059                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051214                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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