IN THE CASE OF:
BOARD DATE: 27 July 2010
DOCKET NUMBER: AR20100000806
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 1941 discharge be upgraded to honorable.
2. The applicant states his discharge should be upgraded because the civilian charge on which it was based was dismissed.
3. The applicant provides, in support of his request, copies of his WD AGO Form 56 (Discharge from the Army of the United States) and a 9 October 1944 letter from the Probation Department, County of Los Angles, California.
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 applicant was inducted into the Army of the United States on 24 June 1941. He was 22 years and 9 months old.
3. Page 7 (Time Lost) of his service record shows that he was in confinement from 11 August 1941 onward while awaiting trial or serving a sentence. An administrative remark notes that, on 18 October 1941, the applicant was sentenced to 3 years probation for felony purse snatching on 8 August 1941. The first 6 months of the sentence were to be served in the "County Road Camp Honor Farm."
4. On 31 October 1941, the applicant was recommended for separation under the provisions of Army Regulation 615-360, Section IX. On 10 November 1941, he was so discharged. He had served 1 month and 18 days of creditable service.
5. Army Regulation 615-360, in effect at the time, set forth the policy and procedures for separation of enlisted personnel. Section IX provided for cases involving conviction by a civilian criminal court for any offense involving treason, murder, rape, kidnapping, arson, sodomy, or pandering; any sex crime; any drug crime; or any offense if sentenced to a period of more than 1 year. A blue discharge was to be issued.
6. Army Regulation 635-200 (Enlisted Separations), currently in effect, 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.
7. The letter that the applicant submitted with his application states, "
on October 9, 1944 [emphasis added], your probation case was dismissed and the plea of guilty changed to not guilty
"
DISCUSSION AND CONCLUSIONS:
1. The applicant states his discharge should be upgraded because the civilian charge on which it was based was dismissed.
2. The case was not reversed until after the applicant had served the sentence. He was not available to serve until 3 years after the conviction. He had completed only 1 month of active duty service.
3. He simply did not serve due to his own misconduct and an honorable discharge is not warranted.
4. There is no rationale to support the applicant's conclusion that the circumstances warrant the requested relief.
5. In view of the foregoing there is no basis for granting the applicant's requested relief.
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) AR20100000806
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ABCMR Record of Proceedings (cont) AR20100000806
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