IN THE CASE OF:	  

		BOARD DATE:	        13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012364 


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, in effect, that his dishonorable discharge be upgraded to an honorable or general discharge.

2.  The applicant essentially states that he was assigned to the Quartermaster Corps when he was inducted, but was about to be sent overseas as an infantry Soldier, and that he could not kill other people due to his moral and religious principles.  He also states that he served honorably for 3 years prior to going absent without leave (AWOL), and feels that this period of honorable service warrants at least a general discharge.  He further states that after being discharged, he was employed for more than 20 years with the same employer, and was married and raised two children.  Additionally, he states that he was never in any legal trouble, and although his period of service was dishonorable, he is proud to have served his country during a period of war.  Further, he states that he is requesting relief so that he can be buried with military honors.  

3.  The applicant provides a partially legible copy of his WD AGO Form 53-57 (Enlisted Records and Report of Separation – Dishonorable Discharge) and an unknown Army data card in support of this application.

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 majority of the applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the majority of the applicant's records were lost or destroyed in that fire.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.

3.  The available records show that the applicant was inducted into the Army of the United States and entered active duty on 24 April 1941.  They also show that he did not complete any service outside the continental United States.  

4.  Although all of the facts and circumstances surrounding the applicant's court-martial are not available, the available records essentially show that the applicant was convicted by a general court-martial for going AWOL from 6 January 1944, and remaining so absent until 25 May 1944.  Although Headquarters, 96th Infantry Division, Camp San Luis Obispo, California General Court-Martial Order Number 50, dated 22 June 1944, was not among the documents in his military records, it appears that he was sentenced to confinement at hard labor for 
5 years, total forfeiture of pay and allowances, and to be dishonorably discharged.  The available records also show that the applicant's sentence was suspended and that he was returned to duty on 11 May 1945, but that this suspension was vacated on 8 November 1945 and ordered executed due to another period of AWOL, but that so much of the applicant's sentence as provided for a dishonorable discharge was further suspended until his release from confinement. 

5.  On 20 June 1946, so much of the applicant's sentence to confinement in excess of two and one-half years was remitted by direction of the President. 

6.  On 17 October 1946, the applicant was dishonorably discharged.  His 
WD AGO Form 53-57 essentially shows that he had a total of 349 days of lost time.  

7.  The applicant essentially stated that he was assigned to the Quartermaster Corps when he was inducted, but was about to be sent overseas as an infantry Soldier, and that he could not kill other people due to his moral and religious principles.  He also stated that he served honorably for 3 years prior to going AWOL, and feels that this period of honorable service warrants at least a general discharge.  He further stated that after being discharged, he was employed for more than 20 years with the same employer, and was married and raised two children.  Additionally, he stated that he was never in any legal trouble, and although his period of service was dishonorable, he is proud to have served his country during a period of war.  Further, he stated that he is requesting relief so that he can be buried with military honors.  

8.  Army Regulation 635-200, paragraph 3-7a provides, in pertinent part, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

9.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  This regulation also stated that the ABCMR is not an investigative body, and will decide cases on the evidence of record. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dishonorable discharge should be upgraded to an honorable or general discharge.

2.  The fact that the applicant essentially requested that his dishonorable discharge be upgraded so that he may be buried with military honors was noted. However, in order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

3.  The applicant’s trial by general court-martial was warranted by the gravity of the serious offense with which he was charged.  It appears that his conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

4.  The applicant's entire record of service was considered using the available documents.  However, the fact that the applicant had additional periods of AWOL, in addition to his period of AWOL which ultimately resulted in his dishonorable discharge, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  

5.  After a thorough review of the available records, no cause was found for clemency, and there is an insufficient basis upon which to base an upgrade of the applicant’s dishonorable discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for granting the applicant's request.

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.


      _____ _   XXX_______   ___
               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.

ABCMR Record of Proceedings (cont)                                         AR20080012364



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ABCMR Record of Proceedings (cont)                                         AR20080012364



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