RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050018264


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Edward Montgomery             |     |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 be granted in the form
of an honorable discharge.

2.  The applicant states that no one should be reprimanded and reduced in
rank because of their name and ultimately dishonorably discharged.  He
contends his discharge has caused him great embarrassment and shame
throughout his life.  He states, in effect, that after a first lieutenant
with the same last name found out they were not related the first
lieutenant made his life miserable and he went absent without leave (AWOL).
 He states he is sorry for this decision and apologizes to the Government.

3.  The applicant provides a copy of DD Form 214 (Report of Transfer or
Discharge) and a letter, dated 3 November 2005, from a Member of Congress.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 February 1959.  The application submitted in this case is
dated 31 October 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.

4.  The applicant enlisted on 4 February 1954 for a period of 6 years.  On
15 November 1955, he was honorably discharged for immediate reenlistment.
He reenlisted on 16 November 1955 for a period of 6 years.

5.  The applicant’s Staff Judge Advocate Review shows that on 10 September
1958, he was convicted by a special court-martial of two specifications of
being AWOL (from 11 March 1958 to 27 March 1958 and from 5 April 1958 to
22 August 1958).  He was sentenced to be confined at hard labor for 6
months and to forfeit $70 for a period of 6 months.  On 11 September 1958,
the convening authority approved the sentence.

6.  On 4 December 1958, in accordance with his pleas, the applicant was
convicted by a general court-martial of being AWOL from 17 September 1958
to 4 November 1958 and violating his parole conditions.  He was sentenced
to be dishonorably discharged from the service and to forfeit all pay and
allowances.  On 18 December 1958, the convening authority approved the
sentence.

7.  The applicant’s Staff Judge Advocate Review indicates the applicant
stated that his AWOL periods resulted from his devotion to a
friend/Soldier, that the Soldier’s wife was in poor health, and that since
he had a car he went AWOL to take the Soldier home to see his family.   He
also stated that he did not like the Army and desired to return to civilian
life, that he was willing to accept a punitive discharge as a means out of
the service, and that he would probably go AWOL again if returned to duty.

8.  On 15 January 1959, the Board of Review, Office of The Judge Advocate
General affirmed the findings of guilty and the sentence.

9.  The dishonorable discharge was ordered to be executed on 27 January
1959.

10.  Accordingly, the applicant was discharged with a dishonorable
discharge on
13 February 1959 under the provisions of Army Regulation 635-204, for
conviction by a general court-martial.  He had served a total of 4 years, 1
month, and 1 day of total active service with 339 days of lost time.

11.  Army Regulation 635-204, in effect at that time, set forth the basic
authority for separation of enlisted personnel with dishonorable and bad
conduct discharges.  This regulation states that an enlisted person will be
dishonorably discharged pursuant only to an approved sentence of a general
court-martial imposing a dishonorable discharge.

12.  Section 1552(f), Title 10, United States Code states that the Army
Board for Correction of Military Records can only review records of court-
martial and related administrative records to correct a record to
accurately reflect action taken by reviewing authorities under the Uniform
Code of Military Justice or to take clemency action.

13.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently
meritorious to warrant an honorable discharge.  A characterization of under
honorable conditions may be issued only when the reason for the Soldier’s
separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions relate to evidentiary and procedural
matters that should have been adjudicated in the court-martial or appellate
process and furnish no basis for recharacterization of the discharge.
However, evidence of record shows the applicant went AWOL because of a
friend.

2.  The applicant's record of service during his second enlistment included
one special court-martial conviction, one general court-martial conviction,
and 339 days of lost time.  As a result, this record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance for Army personnel.  Therefore, clemency in the form of an
honorable discharge is not warranted in this case nor was his service
sufficiently satisfactory to warrant a general discharge.

3.  Records show the applicant should have discovered the alleged injustice
now under consideration on 13 February 1959, the time for the applicant to
file a request for correction of any injustice expired on 12 February 1962.
 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

JM_____  JR______  __EM____  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.




                                  ___Allen Raub_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018264                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |19590213                                |
|DISCHARGE AUTHORITY     |AR 635-204                              |
|DISCHARGE REASON        |Conviction by a general court-martial   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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