| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Mr. Luther L. Santiful | Chairperson | |
| Mr. Roger Able | Member | |
| Mr. Terry L. Placek | Member |
APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded.
APPLICANT STATES: In effect, that he completed the confinement required by his general court-martial sentence and now requests an upgrade of his discharge in order to enhance his employment opportunities. He further states that it was his belief that his discharge would be automatically upgraded after a certain amount of time had passed.
EVIDENCE OF RECORD: The applicant's military records show:
He continuously served on active duty for 2 years and 22 days, from 15 June 1953 until 2 September 1955, when he was separated with a BCD based on the sentence imposed as a result of his conviction by a general court-martial.
The applicant was trained and served in military occupational specialty (MOS) 140 (Oiler Locomotive) and the highest rank he attained while serving on active duty was private. During his active duty tenure, he was awarded the National Defense Service Medal and the Army of Occupation Medal (Germany). His record documents no other acts of valor, significant achievement, or service warranting special recognition.
However, his record does reveal a disciplinary history that includes his trial and conviction of striking a soldier in the face by a special court-martial on 17 June 1955. The resultant sentence included a forfeiture of $60.00 pay for 4 months and 4 months of confinement that was suspended.
On 7 July 1955, the applicant was convicted by a general court-martial (GCM) of the wrongful appropriation of a vehicle worth $1,734.00 and for leaving the scene of an accident without making his identity known. The resultant sentence included a total forfeiture of pay, confinement for 1 year, and a dishonorable discharge (DD). On 8 July 1955, the convening authority approved the sentence with a modification of the DD to a BCD and ordered all but the BCD portion to be executed.
GCM Orders Number 1073, dated 23 August 1955, issued by Headquarters, Branch United States Disciplinary Barracks, New Cumberland, Pennsylvania, directed the BCD portion of the applicant’s sentence be executed based on the findings and sentence having been finally affirmed. Accordingly, on 2 September 1955, the applicant was discharged after completing 2 years and 22 days of creditable active military service and having accrued a total of 58 days of time lost due to confinement.
Title 10 of the United States Code, section 1552, as amended, does not permit any redress by the Army Board for Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.
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. The Board notes the applicant’s contentions that he believed his discharge would automatically be upgraded after a given period of time and that based on his having served his time in confinement, his discharge should be upgraded in order to enhance his employment opportunities. However, the Board finds these claims are not sufficiently mitigating to warrant an upgrade of his discharge.
2. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.
3. The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.
4. Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service. Therefore, it finds there is an insufficient basis to grant clemency in this case.
5. Further, the applicant is advised that there is no provision of law or regulation that mandates an automatic upgrade of a soldier’s discharge. An upgrade of a soldier’s discharge may be warranted if the Board determines that the discharge was in error or unjust. The Board found no evidence in the file that would satisfy this requirement.
6. 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 this requirement.
7. 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
__LLS___ __RA___ __TLP___ DENY APPLICATION
| CASE ID | AR2001059748 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2001/12/20 |
| TYPE OF DISCHARGE | ( BCD,) |
| DATE OF DISCHARGE | 1955/09/02 |
| DISCHARGE AUTHORITY | AR615-364 . . . . . |
| DISCHARGE REASON | Court-Martial |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 105.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2012 | 20120004850
This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. On 27 February 1956, the U.S. Army Board of Military Review affirmed the approved findings of guilty and the sentence, except for that part of the sentence of confinement, which was modified to hard labor for 9 months. The DD Form 214 he...
ARMY | BCMR | CY2013 | 20130021178
IN THE CASE OF: BOARD DATE: 25 July 2014 DOCKET NUMBER: AR20130021178 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant's complete military records are not available to the Board for review. His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.
ARMY | BCMR | CY2001 | 2001056014C070420
The applicant requests correction of military records as stated in the application to the Board and as restated herein. 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: An upgrade of a soldier’s discharge may be warranted if the Board determines that the discharge was in error or unjust.
ARMY | BCMR | CY2002 | 2002080446C070215
The applicant requests correction of military records as stated in the application to the Board and as restated herein. EVIDENCE OF RECORD : The applicant's military records show: On 19 July 1963, the Board of Review, United States Army reviewed the applicant’s case, and it held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.
ARMY | BCMR | CY2001 | 2001059622C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. EVIDENCE OF RECORD : The applicant's military records show: On 25 September 1992, the convening authority approved the sentence and ordered all but the BCD portion to be executed.
ARMY | BCMR | CY2002 | 2002070855C070402
However, in this case, the Board finds the evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations, and that his trial by court-martial was warranted by the gravity of the offense with which he was charged. The evidence of record does confirm that the applicant ultimately received a BCD, as indicated in the court-martial record, and that his separation document incorrectly lists the type of discharge as a DD. ...
ARMY | BCMR | CY2002 | 2002074256C070403
EVIDENCE OF RECORD : The applicant's military records show: 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: Therefore, notwithstanding his post service good conduct and achievements, the Board finds that there is an insufficient basis to grant clemency in this case.
ARMY | BCMR | CY2002 | 2002068550C070402
The applicant requests correction of military records as stated in the application to the Board and as restated herein. EVIDENCE OF RECORD : The applicant's military records show: 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:
ARMY | BCMR | CY2003 | 2003088520C070403
Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. The evidence of record confirms that the applicant’s conviction and discharge with appropriate RE code were effected in accordance with applicable law and regulations in effect at the time, and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged. The...
ARMY | BCMR | CY2003 | 2003089687C070403
The applicant requests correction of military records as stated in the application to the Board and as restated herein. EVIDENCE OF RECORD : The applicant's military records show: Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given one of these punitive discharges pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must...