PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:            24 May 2000                  
	DOCKET NUMBER:   AR2000040954

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his dishonorable discharge (DD) be upgraded to a general discharge under honorable conditions. 

3.  The applicant states, in effect, that he is an 87 year old, homeless veteran living in a nursing home with no place to go except to a home for veterans.  He submits a copy of his United States of America Certification of Military Service, and a copy of his general court-martial orders.

4.  The available record is very limited.  It indicates that he enlisted in the Regular Army (RA) on 10 September 1934.  He served with the 2nd Calvary, Fort Riley, Kansas.  The record does not show the military occupational specialty (MOS) in which he served, nor does it show that he was entitled to any awards or decorations.

5.  On 5 April 1935, the applicant was convicted by a general court-martial of feloniously taking (stealing) a pair of trousers (slacks) from another soldier that was valued at about $11.00.  He was sentenced to confinement at hard labor for 6 months, forfeiture of all pay and allowances, and to be discharged with a DD.  The appropriate authority ordered the DD duly executed.  

6.  On 7 May 1935, he was discharged.  He had completed 7 months and 
27 days of active military service.  He had no recorded lost time due to being absent without leave.  His separation documents are not contained in the available records.  Whether he remained in confinement is unknown.

7.  On 26 July 1935, Headquarters Seventh Corps Area, Office of the Commanding General, reviewed the applicant’s case and denied him clemency.  The regulation, then in effect, provided that a soldier serving a sentence to confinement of 6 months or more would be considered for clemency during the first 6 months of confinement.

8.  In 1943, the War Department cleared the applicant for induction and provided that, if the local Selective Service board found him to be fully qualified otherwise, he could be inducted into the Armed Forces.

9.  He claims to have had service during World War II from 1943-1945, but no documentation could be found by the National Personnel Records Center to support this claim.

10.  The applicant recently applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  However, he was not eligible for an ADRB review.

11.  The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

CONCLUSIONS:

1.  The applicant’s DD issued to him on 7 May 1935 was administratively correct and in conformance with the applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights.

2.  Also, it appears that after he was discharged in 1935, he was a good law abiding citizen as indicated at the time of his clearance for induction in 1943.

3.  The Board does not condone the applicant’s act of misconduct.  However, the sentence that he received appears to be quite harsh.  His record contains no evidence of indisciplines other than the one for which he was discharged.

4.  Considering the facts and circumstances of the case, and taking cognizance of the time which has elapsed since the applicant’s discharge from service, the Board determined that the interest of justice would best be served by changing the applicant’s characterization of service to a general discharge under honorable conditions.  The reason for discharge should not be changed.  The Board takes this action as an exception to policy, in the nature of clemency.  The Board concludes that the purpose of the DD has been served.

5.  In view of the foregoing, the applicant’s records should be corrected, but only, as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.	by showing that the DD issued to the individual concerned on 
7 May 1935, is void and without force or effect;

	b.  by showing that the individual concerned was separated from the service with a general discharge, under honorable conditions on 7 May 1935; and

c.  by issuing the individual concerned a General Discharge Certificate from the RA, dated 7 May 1935, in lieu of the DD of the same date now held by him.

BOARD VOTE:  

__jns___  ___mdm___  __mw__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___JOHN N. SLONE__
		        CHAIRPERSON

INDEX

CASE ID	AR2000040954	
SUFFIX		
RECON		
DATE BOARDED	20000524	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	119350507	
DISCHARGE AUTHORITY	AR635-360 	
DISCHARGE REASON	A01.33	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	144.0133	
2.		
3.		
4.		
5.		
6.