RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 March 2007
      DOCKET NUMBER:  AR20060012545


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Mr. Rodney E. Barber              |     |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 that his general under honorable conditions
discharge be upgraded to honorable.

2.  The applicant states that he was discharged for being absent without
leave (AWOL).  While he does not contend (sic, presumably meant to be
“contest”) that he went AWOL, he had to go AWOL in order to seek medical
treatment.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 11 December 1978, the date the Board’s recommendation that his
dishonorable discharge be upgraded to general under honorable conditions
was approved.  The application submitted in this case is dated 4 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’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 (particularly the previous Board case, dated 15
November 1978) remaining in a reconstructed record for the Board to conduct
a fair and impartial review of this case.

4.  The applicant previously requested that his dishonorable discharge be
upgraded to general under honorable conditions.  On 15 November 1978, the
Board recommended approval of his request to upgrade his dishonorable
discharge to general under honorable conditions in a reconsideration of an
original request dated 24 October 1962 (which is not available).

5.  The applicant enlisted in the Regular Army on 18 January 1949.

6.  The applicant departed AWOL on or about 2 August 1950 and was returned
to military control on or about 3 March 1951.

7.  On 1 August 1951, the applicant was convicted by a general court-
martial of being AWOL from 2 August 1950 to 3 March 1951.  His approved
sentence was a dishonorable discharge, total forfeitures, and confinement
at hard labor for one year.

8.  After entering a guilty plea to the charge of desertion, the applicant
made an unsworn statement in which he gave the following information:

      He had been in and out of the hospital at his station, Fort Lewis, WA,
      from December 1949 to July 1950, but was not sure for what he was
      being treated.  While in the hospital, his battery commander did not
      send him his mail.  In July 1950 when he was released from the
      hospital, he found a letter waiting for him which told him his mother
      was “bad off.”  At that time, he asked his battery commander for his
      July pay, which he had not received, and for leave he had coming to
      him.  Both requests were denied and he was sent to the Red Cross for
      assistance.  He felt his battery command called ahead to tell the Red
      Cross not to help him.  About the same time, he sought a hardship
      discharge, but his request did not go beyond the battery orderly room.
       He personally took the application to personnel, but it was
      disapproved.  When he arrived home in Shelby Gap, Kentucky, he found
      his mother sick in bed.  His two young sisters and crippled father
      were unable to take care of her or to support the family.  He intended
      to return to his battery after visiting with his mother two or three
      days, but his affairs at home were in such bad condition that he had
      to stay to straighten them out.  He started back to Fort Lewis eight
      or 10 times, but men were coming into the house drunk and causing
      trouble.  Because of those conditions, he rented a house for his
      family in Pound, VA.

9.  On 15 January 1952, the Staff Judge Advocate advised the convening
authority that it was felt the applicant was mentally responsible for the
offense and the case should be referred for trial.  If a later medical
report should find mental irresponsibility, appropriate action could then
be taken by the convening authority.

10.  On 15 January 1952, the applicant was diagnosed as suffering
schizophrenic reaction, paranoid type.

11.  On 21 April 1952, the applicant’s sentence was executed and he was
discharged with a dishonorable discharge after completing 1 year, 9 months,
and 29 days of creditable active service.

12.  In the processing of the applicant’s 15 November 1978 case, an
advisory opinion was obtained from the Office of The Surgeon General.  The
records were reviewed by the Neuropsychiatric Consultant, Office of The
Surgeon General, who was of the opinion that at the time of the applicant’s
offense he was mentally responsible for his acts and that at the time of
his discharge he possessed sufficient mental capacity to understand the
nature of the proceedings.

13.  In the processing of the applicant’s 15 November 1978 case, an
advisory opinion was also obtained from the Office of The Judge Advocate
General.  The Chief, Criminal Law Division, opined that neither the
psychiatric report nor the post-trial psychiatric examination which
diagnosed the applicant as a paranoid schizophrenic invalidated the
findings or sentence.  Even if the issue of the applicant’s mental
responsibility had been raised, it was opined that the record of trial
contained sufficient evidence from which the court could have concluded the
applicant was sane beyond a reasonable doubt both at the time of the
offense and at the time of trial.

14.  The Board, in the applicant’s 15 November 1978 case, concluded that
consideration should be given to the applicant’s low intellectual level,
the onset of his mental illness a short time after the court-martial, and
the family problem which allegedly led to the offense and recommended that
his dishonorable discharge be upgraded to a general discharge.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), 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, or is otherwise so meritorious that
any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended he had to go AWOL in order to seek medical
treatment.

2.  However, in the statement he gave at the time, he contended he went
AWOL because his affairs at home (his mother ill in bed, his crippled
father unable to take care of his two young sisters) required him at home
to straighten out those affairs.  He made no mention of seeking out medical
care for himself.  In fact, his mental condition, despite the findings at
the pre-trial psychiatric examination and on 15 January 1952, appears to
have been sufficiently mild to have enabled him to take care of his family
for about seven months even to the point of moving them to a more secure
home.

3.  The Board upgraded his discharge from dishonorable to general under
honorable conditions in 1978.  There is insufficient evidence that would
warrant a further upgrade.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 December 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   10 December 1981.  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

__mkp___  __lwr___  __reb___  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.




                                  __Margaret K. Patterson
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2000012545                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070315                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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