APPLICANT REQUESTS: That his bad conduct discharge be upgraded to an honorable discharge.
APPLICANT STATES: In effect, that he was not guilty of the offense for which he was charged, but his civilian attorney recommended that he plead guilty since blacks did not fare well in cases like this.
COUNSEL CONTENDS: That the Board should grant clemency and change the discharge as requested by the applicant.
EVIDENCE OF RECORD: The applicants military records show:
He was born on 30 January 1940. He completed 10 years of formal education but later completed his high school GED. On 27 November 1957, he enlisted in the Regular Army for 3 years. He completed basic combat training and advanced individual training and was awarded military occupational specialty 140.00 (Field Artillery Basic).
On 7 April 1960, the applicant was convicted by a special-court martial of assault on a German national by striking him on the face with his fist. He was sentenced to confinement at hard labor for 1 month, hard labor without confinement for 2 months, to be reduced to pay grade E-1, and to forfeit $40 pay for 3 months.
On 6 June 1960, the applicant was convicted by a special court-martial of being absent without leave from 1700 hours 20 May - 0200 hours 21 May 1960 and from 2400 hours 23 May - 1000 hours 24 May 1960 and of making a false official statement. He was sentenced to confinement at hard labor for 45 days, hard labor without confinement for 45 days and to forfeit $43 pay for 3 months.
On 24 September 1960, the applicant was convicted by a general court-martial, in a joint trial with seven other defendants, of assault on a person then in execution of military police duties and of participating in a breach of peace. His approved sentence was to receive a bad conduct discharge, to forfeit all pay and allowances, to be reduced to pay grade E-1 and to be confined at hard labor for 9 months.
On 16 January 1961, the U.S. Army Board of Review affirmed the sentence.
On 25 March 1961, the applicant was discharged, with a bad conduct discharge, pursuant to his court-martial sentence.
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 offense charged.
The applicant did not have to follow his attorneys advice; he did not have to plead guilty. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
3. There is no evidence in the available records or in the applicants supporting documentation to demonstrate that he was the victim of racial prejudice.
4. In view of the foregoing, there is no basis for granting the applicants 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
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