APPLICANT REQUESTS: In effect, that he be granted an honorable discharge.
APPLICANT STATES: In effect, that he has two discharges for the same period of service--one honorable and the other, dishonorable. He provides a copy of a partially burned DD Form 214, Report of Separation or Transfer from the Armed Forces of the United States, which he purports to be an honorable discharge. He also provides a NA Form 13038, Certificate of Military Service, provided him by the National Personnel Records Center, St. Louis, Missouri, in 1995 which characterizes his service as dishonorable.
COUNSEL CONTENDS: NA
EVIDENCE OF RECORD: The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.
He was born on 12 October 1930 and enlisted in the Regular Army for 3 years on 31 August 1949. Following completion of the required military training, he was assigned to a unit in Korea.
On 24 December 1950, the applicant and two fellow soldiers left their compound to go hunting. The applicant and another soldier were armed with carbines and the third soldier was armed with an M1 rifle. As the roamed the nearby hills, the trio came upon a 10 year old Korean boy approximately 350 yards away in the valley below them. The applicant suggested that they shoot at the boy to frighten him. He and the other soldier armed with a carbine began firing at the child, who began to run. After running 25-30 yards, the child fell face down and was motionless. Shortly thereafter, the trio of soldiers was confronted by a distraught Korean father covered in blood and carrying his sons shoes. The soldiers did not understand him and simply walked away. The Korean father brought his child to an Army Aid Station where a doctor pronounced the boy dead. He had been shot once through the back of the head with a high velocity rifle and there was a large exit wound in the upper right side of his skull. The matter was reported to the military authorities.
The applicant and his two friends were apprehended and he and the other soldier who fired at the boy were charged with premeditated murder and absence without leave (AWOL) from 5-16 January 1951. The applicant and his co-defendant were tried separately by general courts-martial. Although he pleaded not guilty, the applicant was convicted of unpremeditated murder and AWOL. He was sentenced to a DD, 10 years confinement in a Federal penitentiary, and total forfeiture of all pay and allowances.
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
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 is confused. The partially burned DD Form 214 which he believes to be an honorable discharge is, in fact, a dishonorable discharge. The information presented on the NA Form 13038, Certificate of Military Service, accurately reflects that DD Form 214.
3. The applicant was convicted by a general court-martial for his part in killing a 10 year old boy. 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, and the discharge appropriately characterizes the heinous misconduct for which the applicant was convicted.
4. 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
Karl F. Schneider
Acting Director
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