Title: APPLICANT REQUESTS: That his dishonorable discharge be upgraded to an honorable discharge
Author: WoodsHN

ABCMR Memorandum of                                                              AC97-09686
Consideration (cont)

APPLICANT REQUESTS:  That his dishonorable discharge be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that prior to the incident he had never been in any trouble in his entire life.  He served two years in prison for tire theft, which he admitted.  He knows this was wrong and he apologizes.  For 43 years he’s endured the burden of a dishonorable discharge as a Black man in the Army in 1952.  He feels the punishment did not fit the crime.  His mother is 90 years old and he is 63.  Before either one dies, they would like to see him eligible for an American flag to be draped over his casket.  He provides letters of support from his brother, a retired Air Force Master Sergeant, and two cousins.  The Memorandum of Consideration is not available and the case is reviewed de novo.

EVIDENCE OF RECORD:  The applicant’s military records are not available.  The information contained herein was obtained from alternate sources:

He enlisted in the Army on 29 May 1952.

He had no prior record of any disciplinary actions.

In a sworn statement made 5 April 1954, the applicant stated he was in a jeep with two of the defendants when one of them sold the jeep’s spare tire to a German for Deutschmark 35.  Soon thereafter he asked the other defendant “Where is my cut?” and took Deutschmark 5.

On 19 May 1954, the applicant pleaded guilty to and was convicted by, in a joint trial with three other defendants, a general-court martial of theft of four tires, tubes and wheels; wrongful appropriation of a 2 ½ ton truck; and selling without proper authority three tires, tubes and wheels.  He was sentenced to a dishonorable discharge, to confinement at hard labor for 2 years and to a forfeiture of all pay and allowances (maximum possible confinement time was  13 years).  This was a lesser sentence than that given two of the other defendants.

On 25 June 1954, the U.S. Army Board of Review affirmed the sentence.

On 26 August 1954, the U.S. Court of Military Appeals determined the applicant was not entitled to a grant of review.

On 30 September 1954, the applicant was discharged, with a dishonorable discharge, pursuant to his court-martial sentence.

On 17 April 1961, this Board denied the applicant’s request for an upgrade.

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.

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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations.  The applicant’s good previous record was considered in his sentencing.  The discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  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

                             				 Loren G. Harrell
					 	 Director