RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 April 2008
	DOCKET NUMBER:  AR20070014997 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 dishonorable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that the alleged incident would not have occurred today. 

3.  The applicant provides a copy of his WD AGO Form 53-57 (Enlisted Record and Report of Separation) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Records were obtained from alternate sources and show that he was inducted and entered active duty on 12 March 1942.  

3.  The applicant was convicted, contrary to his plea by a general court-martial on 29 November 1943, of assault upon another Soldier, with intent to commit murder, by willfully and feloniously shooting at the Soldier with a dangerous weapon, to wit; a service rifle.  His sentence consisted of confinement at hard labor for 5 years, a forfeiture of all pay and allowances due or to become due, and a dishonorable discharge.

4.  On 22 December 1943, the general court-martial convening authority directed that the sentence be duly executed and that portion of the sentence adjudging the dishonorable discharge be suspended until the Soldiers' release from confinement.  Fort Jackson, South Carolina was designated as his place of confinement.
5.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant’s DD Form 214 shows that on 12 December 1946, he was discharged from the Army pursuant to the sentence of a general court-martial, under the provisions Army Regulation 615-364.  He was issued a dishonorable discharge. On his discharge date, he had a total of 2 years, 11 months, and 2 days of creditable service and 1,236 days of time lost due to confinement.

6.  Army Regulation 615-364, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1(a) of the regulation provided, in pertinent part, that an enlisted person will be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge.  

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

8.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.   

DISCUSSION AND CONCLUSIONS:

1.  The facts and circumstances pertaining to the applicant's discharge are unavailable for review.  However, his DD Form 214 itself shows that he was discharged from the Army pursuant to the sentence of a general court-martial.  He was convicted by a general court-martial for an offense of intent to commit murder and committing an assault upon another Soldier, by willfully and feloniously shooting at the Soldier, with a dangerous weapon.

2.  The applicant's record contains a copy of his DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service; therefore, Government regularity is presumed in the discharge process.  
3.  The applicant states that the alleged incident would not have occurred today.  He has made an assumption that he can not prove and can only speak for himself.  However, had this incident occurred today he would have faced an equal or greater punishment.  Under the Manual for Court Martial, in effect today, the maximum punishment for attempted murder includes a dishonorable discharge and confinement for life.

4.  The applicant’s DD Form 214 shows that he accumulated a total of 1236 days of lost time.   A loss of this amount of time due to either absence without leave or confinement is serious and there is insufficient evidence to show that the applicant now deserves an upgrade of his dishonorable discharge.  

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his dishonorable discharge to a general or an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CD __  __LMD__  __JCR___   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




___Carmen Duncan  ___
      CHAIRPERSON