RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2007
      DOCKET NUMBER:  AR20060005043


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Edward E. 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 his bad conduct discharge (BCD) be upgraded to
an honorable discharge.

2.  The applicant states, in effect, that he was under a lot of stress at
the time of his discharge and the penalty of a BCD was not warranted
because his company commander pressured him after he returned from a tour
in Korea.

3.  The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 13 November 1953, the date of his discharge from active
duty.  The application submitted in this case is dated 30 March 2006.

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 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 to conduct a fair
and impartial review of this case.

4.  The applicant’s records show he entered active duty on 9 March 1950.
He was awarded the Parachutist Badge, served in Korea during the Korean
War, and was awarded the Combat Infantryman Badge.

5.  His reconstructed records show that his significant duty assignment was
with the 3461st Area Service Unit (ASU), Camp Rucker, Alabama.

6.  On 12 June 1953, the applicant was convicted pursuant to his pleas by a
General Court-Martial for violation of Article 86, Uniform Code of Military
Justice (UCMJ) for being absent without leave (AWOL) on or about 2 March
1953
and remaining absent until on or about 29 April 1953; and for violation of
Article 121, UCMJ, in that he stole a Bulova wrist watch of a value of
about $15.00, which was the property of the United States Government.

7.  The applicant was sentenced to a Bad Conduct Discharge (BCD), a
forfeiture of all pay and allowances, and confinement for six months (three
previous convictions were considered).

8.  On 12 June 1953, the applicant consulted with an appellate defense
counsel to represent him at the Board of Review, United States Army.  On 23
July 1953, the appellate defense counsel submitted the case upon its merits
to the Board of Review, United States Army.

9.  On 24 July 1953, the Board of Review, United States Army found the
findings of guilty and sentence as approved by proper authority correct in
law and fact and having determined, on the basis of the entire record, that
they should be approved, such findings of guilty and sentence were
affirmed.

10.  On 7 August 1953, the applicant acknowledged the affirmation of his
court-martial’s findings and sentence and his right to appeal to the U.S.
Court of Military Appeals.

11.  On 13 November 1953, the applicant received a BCD.  The DD Form 214 he
was issued confirms he completed a total of 2 years, 6 months, and 9 days
of active service and had accrued 420 days lost time.

12.  Army Regulation 615-364 (Enlisted Personnel), in effect at the time,
stated, in pertinent part, that an enlisted Soldier will be discharged with
a bad conduct discharge pursuant only to an approved sentence of a general
or special court-martial imposing a bad conduct discharge.

13.  Court-martial convictions stand as adjudged or as 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 Army
Board for Correction of Military Records (ABCMR) is not empowered to set
aside a conviction.  Rather, it is only empowered to change the severity of
the sentence imposed in the court-martial process and then 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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant requested that his bad conduct discharge be upgraded to
an honorable discharge.

2.  Although, the applicant states that he was under a lot of stress from
his company commander after returning from the Republic of Korea, his
lengthy period of AWOL and larceny certainly warranted a bad conduct
discharge.

3.  It must be presumed that the applicant's entire military record was
considered by his court-martial during his trial.  As such, the bad conduct
discharge was the appropriate characterization of service.

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.  Therefore, he is not
entitled to correction of his records to show a general discharge or an
honorable discharge.

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

___bpi___  ___rdg__  ___eem__  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.




                                  _________Bernard P. Ingold________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005043                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070711                                |
|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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