IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100000928 


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 correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) to delete the entry:  "34 DAYS LOST UNDER AW [ARTICLES OF WAR] 107."

2.  The applicant states he does not believe he actually had a venereal disease.  He had a non-specific diagnosis which could have been a case of prostatitis brought on by aggressive sexual activity.  He also requests compassion since he is 88 years old and wishes to spare his descendants any knowledge of his violation of AW 107.

3.  The applicant provides his WD AGO Form 53-55 and his Honorable Discharge Certificate.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the entry:  "34 DAYS LOST UNDER AW 107" be removed from the applicant's WD AGO Form 53-55.

2.  Counsel states:

* the applicant has attempted to have this entry removed since his separation
* the law which provided for this entry was rescinded on 27 September 1944
* others have had identical entries deleted from their DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* currently medical conditions are only reflected in Soldiers' medical records
* the applicant did not use drugs, was not a deserter, alcoholic, or convicted felon

3.  Counsel does not provide any additional documents.

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 show he enlisted in the Army of the United States on 25 May 1942, he was awarded military occupational specialty 631 (intelligence noncommissioned officer), he served in the Central Pacific theater of operations, and he was promoted to the rank of corporal.

3.  He was honorably discharged on 12 November 1945.  Item 55 (Remarks) of the WD AGO Form 53-55 he was issued contains the entry: "34 DAYS LOST UNDER AW 107."

4.  On 14 September 1946, the applicant requested deletion of the entry:  "34 DAYS LOST UNDER AW 107" from his WD AGO Form 53-55.  He explained that when he was hospitalized for a venereal disease he contracted on pass, he was told that if he assisted the military police find the party who gave him venereal disease, they wouldn't punish him under AW 107.  In response, the applicant's records were reviewed on 17 January 1947 and a determination was made that his record was correct.  As a result, on 27 January 1947 the applicant was informed that since he was unable to perform duty through disease or injury for 34 days as a result of his own misconduct, the contested entry on his WD AGO Form 53-55 was correct and should not be changed.

5.  On 4 June 1949, the applicant again requested correction of his WD AGO Form 53-55 to delete the entry:  "34 DAYS LOST UNDER AW 107."  The applicant stated the entry was handicapping him from getting a responsible job and enlisting in the Enlisted Reserve Corps.  He added, "I made a mistake, then I admit it.  Shall I be disgraced the rest of my life for just one indiscretion.  The rest of my service was without a blemish."  That request was denied on 15 July 1949.

6.  Article 107of the Article of War (Soldiers to Make Good Time Lost) states that every Soldier who deserts the service of the United States or who without proper authority absents himself from his organization, station, or duty for more than 1 day, or who is confined for more than 1 day under sentence, or while awaiting trial and disposition of his case, if the trial results in conviction, or who through the intemperate use of drugs or alcoholic liquor, or through disease the result of his own misconduct, renders himself unable for more than 1 day to perform duty shall be liable to serve, after his return to a full duty status, for such period as shall, with the time he may have served prior to such desertion, unauthorized absence, confinement, or inability to perform duty, amount to the full term of his enlistment.

7.  Title 10, U.S. Code, section 972, now in effect, states that enlisted members of an Armed Force who:  (1) desert; (2) are absent from their organization, station, or duty for more than 1 day without proper authority, as determined by competent authority; (3) are confined by military or civilian authorities for more than 1 day in connection with a trial, whether before, during, or after the trial; or (4) are unable for more than 1 day, as determined by competent authority, to perform their duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from their misconduct are liable, after their return to full duty, to serve for a period that, when added to the period that they served before their absence from duty, amounts to the term for which they were enlisted or inducted.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant contends that he actually had prostatitis and not a venereal disease, his request to delete the entry:  "34 DAYS LOST UNDER AW 107" was denied twice following his discharge.  At that time his medical records and hospital records were readily available for review.

2.  The applicant has not provided any evidence which would show the diagnosis of venereal disease was incorrect.

3.  It is noted that an entry of lost time under AW 107 does not indicate the individual had a venereal disease.  It simply means the individual had lost time to make up, which could have been the result of being absent without leave, in confinement, or even being intoxicated rendering himself unable to perform his duties.  The current Title 10, U.S. Code, also provides for classifying time as lost time when a Soldier is unable to perform his or her duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his or her misconduct for more than 1 day as determined by competent authority.

4.  While the applicant's desire to remove any derogatory information from his records is certainly understood, there is no basis for changing a properly-constituted record.

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)                                         AR20100000928



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ABCMR Record of Proceedings (cont)                                         AR20100000928



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