2. The applicant requests that his dishonorable discharge (DD) be upgraded to honorable and the reason for separation be changed to convenience of the Government. He stresses the extenuating and mitigating circumstances of his case and cites 40 years of good post-service citizenship.
3. The applicant was born on 5 November 1934 and enlisted in the Regular Army for 3 years on 4 June 1953. He was sent to Camp Roberts, California, for his required military training and, while there, he received a summary court-martial for stealing another soldiers fatigue uniforms from a clothesline. He stated that his fatigues had been taken and, when he reported it to his commander, he was told to take someone elses clothes.
4. After completing his training, the applicant was transferred to Germany and given leave en route to the debarkation point, Camp Kilmer, New Jersey. While home on leave, he contacted Camp Kilmer to seek a 4 day extension in order to celebrate his birthday at home. When he arrived in Germany, he was charged with 4 days absence without leave (AWOL) and tried by a summary court-martial.
5. The applicants service in Germany was excellent from December 1953 to 30 July 1955. During that time, he was promoted to the rank of Specialist 3 and received excellent conduct and efficiency ratings. On 30 July 1955, he was on pass and went to town where he drank cognac with a newly promoted sergeant. After leaving the German bar, he went to a German brothel where he sent the madams son to buy beer which he then consumed. After drinking the beer, he became sleepy and went to sleep in a girls room. The girls boyfriend, a sergeant, came by and threw him out. The applicant went back to the barracks and got a carbine and magazine of ammunition. He returned to the brothel and threatened the sergeant and the German girl by pointing the carbine at them and showing them the loaded magazine. After doing this, he left.
6. On 26 August 1955, the applicant was tried by a general court-martial for two specifications of aggravated assault. Contrary to his plea, he was found guilty and sentenced to a DD, 1 years confinement, and total forfeiture of all pay and allowances. He was transferred to the Branch United States Disciplinary Barracks, New Cumberland, Pennsylvania, where he served his sentence. His DD was executed on 9 February 1956. He had 2 years, 2 months, and 18 days of creditable service and 172 days of lost time due to AWOL and confinement.
10. The applicant has no criminal record with the Federal Bureau of Investigation (FBI). He provided several letters of support from friends, employers, and family members attesting to his good character.
11. The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.
CONCLUSIONS:
1. The applicant was a good soldier with two very minor disciplinary violations when he demonstrated extremely poor judgment on the night of 30 July 1955. His trial by general court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations.
2. The applicant did not physically harm his two victims; he apparently only sought to frighten them and, although convicted of aggravated assault, there is some confusion about whether the carbine was actually loaded when it was pointed at the victims. Also, the two summary court-martial convictions were introduced by the prosecution in order to portray the applicant as an habitual offender.
3. While the Board cannot, by law, disturb the finality of a court-martial conviction, it can mitigate the punishment when deemed appropriate. In this situation, the documented evidence, as well as the applicant's record, justifies mitigation. It would, therefore, be unjust and inequitable to continue, after 40 years, to cause the applicant to suffer the stigma of a DD.
4. In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicants records as indicated below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service by reason of court-martial with a General Discharge Certificate on 9 February 1956.
2. That so much of the application as is in excess of the foregoing be denied.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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