Title: APPLICANT REQUESTS: Reconsideration of his request for an upgrade of his bad conduct discharge (BCD)
Author: WoodsHN

ABCMR Memorandum of                               AC81-09128F
Consideration (cont)

APPLICANT REQUESTS:  Reconsideration of his request for an upgrade of his bad conduct discharge (BCD).

APPLICANT STATES:  He was unjustly given a BCD due to his ignorance, stupidity, and lack of legal representation.  Since his discharge, he has tried numerous times to upgrade his discharge for the purpose of seeking a respectable job in order to survive in this world of society.  He turned to a criminal style of life in order to survive.  He would gratefully appreciate and welcome the challenge to be a decent citizen.  He served his country honorably in battle.  His BCD had nothing to do nor was it relevant to his service in battle.

EVIDENCE OF RECORD:  The applicant's available military and medical records show:

The applicant was born on 8 May 1929.  He completed 9 years of formal education.  On 11 July 1950, he enlisted in the Regular Army for 3 years.  His Armed Forces Qualification Test score was 45 (Category III).  He was advanced to pay grades E-2 and E-3 effective 12 October 1950 and 6 May 1951, respectively.  He was reduced to pay grade E-2 and then E-1 effective 8 July 1952 and 28 January 1953, respectively.

On 4 December 1950, the applicant, after pleading guilty, was convicted by a summary court-martial for failure to repair at the fixed time to the properly appointed place for guard duty.  He was sentenced to a forfeiture of $5 of his pay.

On 9 January 1951, he was convicted by a special court-martial for being absent without leave (AWOL) from 7 December 1950-2 January 1951 and for breaking restriction.  He was sentenced to a forfeiture of $50 pay per month for 4 months.

On 30 May 1951, he was convicted by a summary court-martial for behaving in a disrespectful manner by using threatening language toward a noncommissioned officer.  He was sentenced to a forfeiture of $5.

On 7 June 1951, the applicant was accidentally shot when the carbine of another soldier went off during target practice.

On 25 February 1952, the applicant submitted a request for a transfer from Fort Sill, Oklahoma, to Massachusetts for compassionate reasons.  He indicated that his parents were both ill and had chronic conditions which had required him to take three emergency leaves during the past few months.  On
14 March 1952, it was directed that orders be issued transferring the applicant to Fort Devens, Massachusetts, but not for compassionate reasons.

On 12 June 1952, the applicant was convicted by a summary court-martial for failure to go at the time prescribed to his appointed place of duty.  He was sentenced to restriction for 1 week.

On 14 August 1952, the applicant, after pleading guilty, was convicted by a summary court-martial for being AWOL from 
4-7 August 1952.  He was sentenced to a forfeiture of $5 and restriction for 20 days.

On 7 September 1952, the applicant’s status changed from duty to AWOL.  On 6 October 1952, his status changed from AWOL to dropped from the rolls as a deserter.

On 23 December 1952, the applicant was convicted by a general court-martial for being AWOL from 7 September-20 November 1952.  He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 6 months.

During the general court-martial proceedings, the applicant testified, in effect, that he served in Korea from January to July 1951; that he was wounded in the left leg and back while serving there; that he had been hospitalized off and on ever since; that, prior to 7 September, he went home on a pass and on arriving home, his parents, who were ill, were upset because his uncle was very sick and was expected to die; that he took them to see his uncle who shortly thereafter died; that he was close to his uncle and his death shook him up; that, at his uncle’s wake, his father collapsed and they took him to the hospital; that his mother had varicose ulcers on her legs and was not suppose to do any standing; that his mother was a very big woman; that he had two younger sisters and one older sister living at home with his parents, but his eldest sister was not able to work; that his parents were having trouble financially so, while he was absent, he worked and helped them along; that he lived at home with them and, when he was not working, he did most of the housework; that, during the entire period, his father was sick and in bed except when he went to the toilet; and that, when his father’s condition improved, he surrendered.

A former member of the Massachusetts Senate testified that he knew the applicant’s family; that the family was on relief; and that, about three times during the month of November, he spoke to the applicant about returning with him to the Army.
The Review of the Staff Judge Advocate of the general
court-martial proceedings indicated, in effect, that the applicant was found not guilty of the charges of desertion and assault, but guilty of the charge of AWOL; that, after being advised of his rights as a witness by the Law Officer, the applicant elected to testify under oath; that the applicant admitted that he was absent for the period alleged without authority; that, based on the correct findings of guilty, the sentence was legally correct; that the applicant expressed a desire to remain in the Army and had offered to volunteer again for service in Korea; that, when questioned about his prior convictions, the applicant gave what he believed to be complete explanations for each and every one of them; that he felt that none of his previous convictions were justified and that he was the one in the right on each occasion; that it was apparent that the applicant had failed to impress any commanding officer under whom he had served since his entry in the Army with his ability as a soldier; that the applicant appeared to be a very temperamental individual who was convinced that he could do no wrong; that, while admittedly the accused had a difficult situation at home, his actions prior to his present unauthorized absence were not consistent with those of a conscientious and dependable soldier; that it was felt that his discharge from the service was warranted; and that, because of his prior service, it was recommended that the dishonorable discharge be mitigated to a BCD, and that it be suspended until the applicant’s release from confinement or until completion of appellate review so that, in the event his actions warrant further consideration for clemency in the meantime, he could be considered for restoration.  The applicant’s character and efficiency ratings were shown as follows:

                           Character     Efficiency Rating

	18 October 1950	  Good		  Satisfactory
	15 February 1951	  Fair		  Unsatisfactory
	13 June 1951	  Very Good	  Satisfactory
	 7 September 1952	  Poor		  Unsatisfactory

On 15 January 1953, only so much of the sentence as provided for a BCD, forfeiture of all pay and allowances, and confinement at hard labor for 6 months was approved by the general court-martial convening authority, but the execution 
of that portion thereof adjudging a BCD was suspended until the applicant’s release from confinement or until completion of appellate review, whichever was the later date.

On 16 February 1953, a board of review affirmed the findings of guilty and sentence as approved by proper authority.

On 17 April 1953, the unexecuted portion of the applicant’s sentence to confinement at hard labor only was remitted.

The applicant’s DD Form 214 (Report of Separation from the Armed Forces of the United States) indicates that he was discharged on 23 April 1953, in pay grade E-1, under Army Regulation 615-364, with a BCD; that he had completed 2 years and 17 days service during that period; that he had 266 days lost; that he received the Army Occupation Medal (Japan) and the Korean Service Medal with one bronze service star; and that he had 5 months and 6 days foreign service.

On 18 March 1954, the applicant was advised by the Executive Secretary of the Board that his request involved the review of the sentence of a general court-martial; that the Board was without authority to review the case unless specifically directed to do so by the Secretary of the Army; that there was a regularly established procedure whereby applications for the review of general court-martial cases were examined and presented to the Secretary of the Army for decision whether or not there had been submitted sufficient new material evidence of a probable error or injustice to warrant a further review by the Board; and that he would be advised at a later date of the decision of the Secretary of the Army in the matter.

On 28 October 1954, the Secretary of the Army directed that the applicant be notified that, on the basis of a thorough review of the application and Army records, the Secretary of the Army had concluded that there was no justification for a formal hearing and review of the case by the Board.

On 23 November 1954, the Office of The Adjutant General notified the applicant that a careful review of his application and his Army records had failed to disclose any basis for a reasonable doubt of his guilt of the offense or offenses for which he was convicted, or to reveal any indication of a probable error or injustice in his trial or sentence; that the Secretary of the Army had, therefore, concluded there was no justification for a formal hearing and review of his case by the Board; and that, in view of the Secretary’s decision, his application would not be reviewed by the Board and no further action on it was contemplated.

On 18 September 1956, a member of Congress, who had submitted a request for reconsideration on the applicant’s behalf, was advised by the Executive Secretary of the Board that the regulations governing the Board’s operation provide that it could deny an application without a hearing if it determined that insufficient evidence had been presented to indicate probable material error or injustice; that, under such regulations, the Board had reconsidered the application and the information recently submitted and found no basis for granting a formal hearing; and that, inasmuch as no new material evidence had been submitted, the request for reconsideration had been denied.

On 12 August 1960, the Executive Secretary of the Board notified the applicant that a review of his records revealed that his case was carefully considered on the basis of a previous application; that it was determined, as a result of such review, that no material evidence of error or injustice was shown to warrant granting a formal hearing of the case and the application was therefore denied; that a careful study of his request for reconsideration revealed no new material evidence sufficient to warrant reopening of the case; and that, in the absence of evidence of error or injustice, not previously considered, no further action in the case was contemplated.

On 7 June 1982, the applicant was advised, in effect, that a careful study of his 20 May 1981 request for reconsideration was made by the staff of the Board to determine if new evidence or other matter, which was not in the record when his case was previously considered, had been submitted; that no such evidence was found; and that his case was not resubmitted to the Board.

On 2 June 1986, the applicant was advised, in effect, that his 15 January 1986 request for reconsideration had been carefully analyzed by the staff of the Board to determine whether he had submitted any new material evidence, or other relevant matter, which was not in the record at the time of the prior Board consideration; that, while he had been kind enough to detail his contentions once again, they did not amount to new material evidence sufficient to establish error or injustice; and that his request was not considered by the Board.

On 11 December 1986, the applicant was advised that his 
9 September 1986 letter had been accepted as a request for reconsideration.  He was furnished information regarding his prior applications.  Also, he was advised that, since his original application to the Board, the statutory authority, under which the Board was created (title 10, U.S. Code, section 1552), was amended precluding the Board to disturb 
the finality of a court-martial conviction; and that his only recourse was to litigate in a Federal court of competent jurisdiction.

The applicant’s record, as compiled by the Federal Bureau of Investigation (FBI), indicates that he was arrested or received at various police/correction departments/
institutions on 20 occasions and that he was convicted on seven occasions for various charges since his separation from military service.  If the applicant should desire a copy of the FBI record considered in his case, he may submit a request for it to this Board.

Army Regulation 615-364, then in effect, provided that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD.

The Manual For Courts-Martial, United States, at the Table of Maximum Punishments, then in effect, provided that for the offense of AWOL for more than 60 days, the punishment was a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor not to exceed 6 months.

The statutory authority under which this Board was created (title 10, U.S Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.  However, the Board can consider modification of the sentence of a court-martial for purposes of clemency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  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 the aforementioned requirement.

2.  The applicant’s trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and 
regulations.  The discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, there is no basis for granting clemency.

3.  The contentions of the applicant have been noted by the Board.  However, they are not supported by the evidence of record nor are they sufficiently mitigating to warrant relief.

4.  The sentence as approved was neither too harsh nor excessive in view of the maximum punishment that he could have received.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION

		David R. Kinneer
		Executive Secretary