RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 APRIL 2007
      DOCKET NUMBER:  AR20060009109


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |                                  |     |Analyst              |

      The following members, a quorum, were present:

|     |                                  |     |Chairperson          |
|     |                                  |     |Member               |
|     |                                  |     |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 records be corrected by
upgrading his discharge.

2.  The applicant states that he was only in trouble once during his
military service which consisted of 28 days of his being absent without
leave (AWOL).

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 14 July 1948.  The application was received on 16 June 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 enlisted in the Regular Army on 27 August 1940, for a
period of 3 years.

4.  On 19 June 1941 a summary court-martial convicted the applicant of
breaking restriction and absenting himself from his place of duty.  The
court sentenced him to restriction to the area of the post for one month.

5.  On 4 June 1943, the applicant was convicted pursuant to his pleas by a
special court-martial of being AWOL from 19 April 1943 to 30 May 1943.  He
was sentenced to reduction to the grade of private, a forfeiture of $33.00
a month for
5 months, and restriction to the limits of the company area for one month.


6.  On 29 November 1943, a summary court-martial convicted the applicant of
being AWOL from 11 November 1943 to 12 November 1943.  The court sentenced
the applicant to 60 days restriction and a forfeiture of $15.00.



7.  On 3 May 1944, the applicant was convicted pursuant to his pleas by a
special court-martial of being AWOL from 2 March 1944 to 21 April 1944.  He
was sentenced to confinement at hard labor for 6 months and a forfeiture of
$18.00 pay per month for 6 months.

8.  On 8 March 1945, the applicant was convicted contrary to his pleas by a
special court-martial of being AWOL from 19 February 1945 to 21 February
1945.  He was sentenced to confinement at hard labor for 6 months and a
forfeiture of $26.00 pay per month for 6 months.

9.  On 20 September 1945, the applicant was convicted contrary to his pleas
by a general court-martial of being AWOL from 29 June 1945 to 13 August
1945, and of the misappropriation of a ¼ ton vehicle, the value of more
than fifty dollars and the property of the United States Government.  He
was sentenced to be dishonorably discharged from the service, to forfeit
all pay and allowances, and to be confined at hard labor for 5 years.  The
sentence was approved and ordered to be duly executed, but the execution of
that portion adjudging a dishonorable discharge was suspended until the
Soldier was released from confinement.

10.  On 26 September 1945, a Review of the Staff Judge Advocate determined
the court was legally constituted and acted within its jurisdiction, and
that the record of trial was legally sufficient to support the findings and
sentence, and was free of any error injuriously affecting the substantial
rights of the accused.  The review recommended that the sentence be
approved and ordered executed, but that the dishonorable discharge be
suspended

11.  On 24 May 1948, the Secretary of the Army remitted the sentence to
confinement in excess of 4 and one-half years.

12.  On 13 July 1948, the Army paroled the applicant.  On 25 February 1949,
the Army released the applicant from parole.

13.  On 14 July 1948, the applicant was dishonorably discharged, under the
provisions of Army Regulation 615-364, Sentences of Court-Martial.  His WD
AGO Form 53-57 (Enlisted Record and Report of Separation - Dishonorable
Discharge) shows he had 4 years, 4 months and 13 days of longevity for pay
purposes, and 1,281 days of lost time.


14.  Army Regulation 615-364 (Enlisted Personnel) in effect at the time,
provided that an enlisted person would be dishonorably discharged pursuant
only to an approved sentence of a general court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contention that he was only in trouble once during his
military service, which consisted of 28 days of being AWOL, is without
merit.  The applicant was court-martialed on five separate occasions of
being AWOL for approximately 95 days, and one occasion for absenting
himself from his place of duty.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 July 1948; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
13 July 1951.  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

__CG  __  ___MF  __  __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.




                                  ______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009109                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070412                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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