APPLICANT REQUESTS: That his dishonorable discharge (DD) be upgraded to honorable.
APPLICANT STATES: That he was a Prisoner of War (POW) in excess of 1,000 days. He believes that, at the time of his bad behavior, he was suffering from a mental disability. He adds that he would like to clear his record for the sake of his children.
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.
The applicant was born on 29 August 1921 and enlisted in the Regular Army on 6 February 1941. Following completion of the required military training, he was transferred to the Pacific Theater of Operations and assigned to a coast artillery anti-aircraft unit on Corregidor, Philippine Islands (PI), with duty as a machine gunner.
When the Japanese Army captured the Philippines, the applicant was taken prisoner on 6 May 1942. He was interred in a series of POW camps, including Cabanatuan and Manila, PI, and Honshu, Japan. He remained a POW until liberated by US Forces in July 1945. Returned to the United States, he was assigned to a convalescent hospital until he was separated with an honorable discharge on 15 June 1946. He had 5 years, 4 months, and 16 days of creditable service.
On 28 June 1946, the applicant reenlisted in the Regular Army for 3 years in the rank of corporal. He had 1 month of service with the Houston Recruiting District before eventually being transferred to Camp Leroy Johnson, Louisiana, for duty as a Military Policeman (MP) at the New Orleans Port of Embarkation.
On 6 December 1948, the applicant and others met and went to the Texas-Pacific and Missouri-Pacific Railroad Wharf at the New Orleans Port to plan the theft of Government property. That night, while serving as the Corporal of the Guard, the applicant and several co-conspirators stole several loads of field jackets, boots, and gloves which were transported to the applicants home. This property was later sold for approximately $900.00.
The applicant was apprehended and tried by a general court-martial on 28 July 1949. He pleaded guilty and testified in his own behalf, relating his World War II service as a POW. He expressed resentment at the Army for failing to properly equip his unit in the Philippines and indicated that he stole the items because he was in debt. He was convicted and sentenced to a DD, 3 years confinement at hard labor, and forfeiture of all pay and allowances.
The applicant served his sentence at the United states Disciplinary Barracks, Fort Leavenworth, Kansas. While there, his confinement record was poor and he attempted one escape. His DD was executed on 29 September 1949. He had 3 years and 3 months of creditable service and 286 days of lost time due to confinement.
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 conspired to steal, and did steal, US Government property for his own personal gain. He admitted to the offense and stated that he was in debt. He attempted to justify his actions by saying that the US Army failed to properly equip his unit in the Philippines. Neither the Court, nor this Board found any mitigating value in the applicants explanation for his actions.
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 Board [as did the Court] considered the applicants prior World War II service, to include his more than 3 years as a POW. While sympathetic to the applicants plight as a POW, the Board did not feel that such service justified mitigation.
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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