IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AR20080005746
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his Bad Conduct Discharge (BCD) be upgraded to a fully honorable discharge.
2. The applicant states he went absent without leave (AWOL) due to immaturity and a lack of education (3rd grade education).
3. The applicant does not provide any additional documentation 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants records only contain his separation document (DD Form 214), General Court-Martial Order Number 463 dated 14 July 1955, and General Court-Martial Order Number 505 dated 8 August 1955. It is presumed that the remainder of his records were destroyed in the fire at the records repository at St. Louis, Missouri, in 1973.
3. The applicant enlisted in the Regular Army on 11 August 1953. He was
20 years old at the time of his enlistment.
4. On 27 June 1955, the applicant pled and was found guilty by a general court-martial of being AWOL from 9 December 1954 to 2 May 1955. His sentence was a BCD, a forfeiture of all pay and allowances, and confinement for 6 months (two previous convictions considered).
5. On 14 July 1955, the sentence was approved.
6. On 8 August 1955, the findings and sentence of the general court-martial having been affirmed pursuant to Article 66, the sentence was executed.
7. Accordingly, on 22 August 1955 the applicant was issued a BCD. He had completed 4 months and 8 days of creditable service, and he had 600 days of lost time prior to the expiration of his term of service (ETS), and 11 days lost time subsequent to his ETS.
DISCUSSION AND CONCLUSIONS:
1. The applicant was 20 years old at the time of his enlistment. As such, his contention that he was immature is not accepted.
2. Because the applicants records could not be located, his level of education cannot be ascertained. However, even if it could be determined that the applicant only had a 3rd grade education, it would not, in and of itself, be grounds to upgrade a properly issued discharge.
3. Also noted is the applicants lengthy period of AWOL was his third offense. As such, the misconduct which formed the basis for his BCD was not an isolated incident or an aberration of his normal conduct.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ___X_____ ___X__ 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.
_______ _ _X______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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