RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 January 2006
      DOCKET NUMBER:  AR20050014825


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Gerald J. Purcell             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
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 (GD).

2.  The applicant states, in effect, that when he first tested for the
draft, he failed the eye test, and was told to return in six months.  He
contends that he never should have been allowed to enter the service.

3.  The applicant provides the following documents in support of his
application:  Third-Party Statement; Letter to The Adjutant General (TAG),
dated 25 October 1963; Separation Document (DD Form 214); and DD
Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 December 1953.  The application submitted in this case
is dated 4 October 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.  This case is being
considered using reconstructed records, which primarily consist of the
applicant’s separation document.

4.  The applicant’s separation document shows he enlisted in the Regular
Army and entered active duty on 27 September 1949.  It also shows that he
served in Korea for 4 months and 20 days, and that he earned the National
Defense Service Medal and Korean Service Medal with 1 bronze service star.


5.  The applicant’s DD Form 214 also shows that he was separated with a DD
as a result of a court-martial sentence on 22 December 1953.  At the time,
he had completed 2 years, 5 months and 24 days of active duty service, and
he had accrued 662 days of time lost.

6.  On 25 October 1963, the applicant requested an upgrade of his discharge
from TAG of the Army.  In his request, the applicant stated that he was
discharged for being AWOL from a non-combat zone in Korea.  He claims that
after being released from the disciplinary barracks, he found out he was
heading for a nervous breakdown due to the progressive nature of his eye
illness.  He went on to say his eye condition was not incurred in service
and he was not asking for compensation.  He submitted the information as
new facts that might assist him in upgrading his discharge.

7.  A third-party statement submitted by a friend states that the applicant
has a chronic fluctuating eye condition that troubled him most of his life.
 She claims it affected his employment and due to this condition, the
applicant decided not to have children, even though he was married for 40
years.  She claims that when the applicant was first tested for the draft,
he flunked the test due to his fluctuating eye problem, and he was asked to
return in six months for re-testing.  She claims the fluctuating eye
condition was the reason the applicant went absent without leave (AWOL).
This AWOL status created serious problems with his parents, which
eventually led to his having no contact with them.  She claims to have
known the applicant for almost four years, and that he has been an
outstanding citizen and according to his wife, a wonderful husband.  She
states that the applicant has been a widower for two years and life has
been hard on him since.  She concludes by stating that the applicant is in
frail health and it would be greatly appreciated if the process could be
expedited.

8.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was the result of the
worsening of an eye condition that existed before he entered service, and
the supporting documents he submitted were carefully considered.  However,
the evidence confirms he voluntarily enlisted in the Army.  There is no
evidence suggesting he failed the eye examination during his first
induction test, or that he was directed to return in six months.

2.  By law, any redress by this Board of the finality of a court-martial
conviction is prohibited.  The Board is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed. In light of the seriousness of the
offense of which he was convicted, and absent the presentation of any
significant mitigating factors, the applicant’s overall record of service
does not support clemency in this case.

3.  The evidence shows the applicant went AWOL while serving in Korea
during a time of conflict.  Notwithstanding his current medical condition,
which is unfortunate, absent any medical evidence confirming that his eye
condition severely impaired his ability to serve, there is an insufficient
evidentiary basis to support a conclusion that this factor was sufficiently
mitigating to support granting clemency 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 December 1953.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on (21 December 1956.  However, he failed to file within the 3-year statute
of limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JI ___  __WFC __  ___GJP    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____John Infante________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050014825                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/01/19                              |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |1953/12/22                              |
|DISCHARGE AUTHORITY     |AR 615-364                              |
|DISCHARGE REASON        |Court Martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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