RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011674 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Paul Smith

Member

Mr. Jerome Pionk

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 to show he was honorably discharged as an officer.  

2.  The applicant states, in effect, that he was commissioned a second lieutenant during World War II.  He contends that the larceny incident for which he was court-martialed was in no way designed to bring disrespect to the United States Army.  He merely desired to assist his crew who did not have Army jackets. 

3.  The applicant provides a copy of his WD AGO Form 53-55; a Certificate of Service; and special orders, dated 13 October 1943. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 25 December 1946.  The application submitted in this case is dated 9 August 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 was inducted on 26 August 1942.  He was honorably discharged on 12 October 1943 to accept appointment as a Warrant Officer (junior grade) in the Army of the United States.  On 13 October 1943, he was appointed a Warrant Officer (junior grade) and entered active duty.  He was honorably discharged on 25 August 1944 to accept a commission as a second lieutenant.

4.  On 31 March 1945, contrary to his plea, the applicant was convicted by a general court-martial of larceny of Government property (2 cans of peanuts, 
1 carton of cigarettes, 2 pairs of socks, 1 pair of snow boots, 1 rain coat, 1 fur lined jacket, 2 snow artic parkas, and 2 cape liners, total value of $84.06).  He was sentenced to be dismissed from the service, to forfeit all pay and allowances, and to be confined at hard labor for 1 year.  On 8 July 1945, the convening authority approved only so much of the findings of guilty of the specification of the charge in that the applicant stole the aforementioned items but the total value was $63.46.  On 13 July 1945, the sentence was ordered executed and the applicant ceased to be an officer of the Army of the United States effective 13 July 1945.     

5.  The applicant was released from confinement on 1 February 1946 and enlisted on the same date in the Army of the United States.  On 25 December 1946, the applicant was honorably discharged in the rank of private first class by reason of dependency. 

6.  Item 3 on the applicant’s WD AGO Form 53-55 shows the entry, “PFC [private first class] 18 MAR 46.”

7.  Army Regulation 635-200, paragraph 3-7a, 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.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant while a second lieutenant was dismissed from the service as a result of a general court-martial conviction for larceny of Government property in 1945.  As a result, his record of service, while a second lieutenant, did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service while he was a second lieutenant is insufficiently meritorious to warrant an honorable discharge.

2.  After his release from confinement, the applicant enlisted on 1 February 1946. When his period of enlisted service ended on 25 December 1946, he was honorably discharged in the rank of private first class.  Unfortunately, his subsequent honorable service as an enlisted Soldier is insufficient to show he was honorably discharged as an officer.

3.  Records show the applicant should have discovered the alleged error now under consideration on 25 December 1946; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950 (3 years after the Board was established on 2 January 1947.  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

WP____  __PS____  __JP____  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.


_William Powers_______
          CHAIRPERSON




INDEX

CASE ID
AR20060011674
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0000
2.

3.

4.

5.

6.