BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090010236 


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 (DD) be upgraded to a general under honorable conditions discharge.

2.  The applicant states he was in his third term of service and became an alcoholic during his military service.  He claims that he and his buddies got into a fight with German Soldiers and one of the Soldiers was killed.  He claims it was an accident and no one knew who actually killed him.  He further states he was young, foolish, and had a problem with alcohol.  He did not know his actions would cause a death and he has paid for this tragedy since his discharge.

3.  The applicant provides no documentary evidence in support of his 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 applicant's record shows that after completing two prior enlistments from 20 February 1943 to 27 November 1945 and 28 November 1945 to 24 March 1947 for which he received honorable discharges, he entered the period of enlistment under review on 7 January 1948.

3.  The applicant's record shows that he attained the rank of corporal on 7 January 1948 and that this is the highest rank he attained during his military service.  It also shows he earned the following awards during his military service tenure:  Asiatic-Pacific Theater Ribbon, Army Good Conduct Medal, American Theater Ribbon, Army of Occupation Medal with Japan Clasp, and World War II Victory Medal.

4.  The applicant's disciplinary history for the enlistment under review shows two separate summary courts-martial (SCM) convictions on 22 March 1948 and 8 June 1948.

5.  On 3 February 1949, a general court-martial (GCM) found the applicant guilty of violating the 93rd Article of War by committing manslaughter and assault on 30 December 1948.  The resultant approved sentence was forfeiture of all pay and allowances, confinement at hard labor for 7 years, and a DD.

6.  On 10 May 1949, the applicant was dishonorably discharged in the grade of recruit under the provisions of Army Regulation 615-364 (Enlisted Personnel Discharges - Dishonorable and Bad Conduct) and Headquarters, U.S. Army Europe GCM Order Number 35, dated 10 May 1949.  The WD AGO Form 53-57 (Enlisted Record and Report of Separation - Dishonorable Discharge) issued to the applicant upon his discharge shows he completed a total of 4 years, 11 months, and 24 days of creditable active military service and accrued 160 days of time lost due to confinement.

7.  Army Regulation 615-364, in effect at the time, provided the authority to discharge an enlisted person with a DD pursuant to an approved sentence of a GCM or military commission imposing a DD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he was young and foolish, he became an alcoholic during military service, he did not understand his actions would cause a death, and because he has paid for his actions since his discharge was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms the applicant completed two prior periods of honorable service and had risen to the rank of corporal.  As a result, it was clear he was sufficiently capable to serve satisfactorily had he chosen to do so.  His record reveals a significant disciplinary history during the enlistment under review, which included two SCM convictions.

3.  Further, there is no evidence suggesting the applicant was not guilty of the offenses that led to his GCM conviction and DD.  As a result, given the gravity of the offenses that led to his GCM conviction and DD, his overall record of service, and the passage of time are not sufficiently mitigating to support an upgrade of his discharge at this late date.

4.  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.

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.
ABCMR Record of Proceedings (cont)                                         AR20090010236



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010236



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1