| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Ms. June Hajjar | Chairperson | |
| Ms. Karol A. Kennedy | Member | |
| Mr. Roger Able | Member |
APPLICANT REQUESTS: In effect, that his dishonorable discharge (DD) be upgraded to an honorable discharge (HD).
APPLICANT STATES: In effect, that his discharge from the Army was unjust. He further states that his military records were burned in a house fire and now he requires assistance for his physical condition. In support of his application, he submits a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).
EVIDENCE OF RECORD: The applicant’s military records were not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed that the applicant’s records were lost in that fire.
The available evidence includes a properly constituted separation document
(DD Form 214) that contains the authority and reason for discharge. This document was issued to and authenticated by the applicant with his signature on the date of his separation, 4 October 1956.
The DD Form 214 confirms that the applicant served on active duty from 7 June 1955 through 4 October 1956. It also shows that on the date of his separation, he held the rank of private/E-1 and was serving in military occupational specialty (MOS) 120.00 (Pioneer). Finally, it documents no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.
The applicant’s discharge packet or the record of his court-martial proceedings, containing the specific facts and circumstances surrounding his general
court-martial conviction, were not available to the Board. However, the separation document confirms that he was discharged under the provisions of Army Regulation 635-204, by reason of a general court-martial conviction; and that he received a DD. It also shows that on the date of his discharge he had completed a total of 5 months and 23 days of creditable active military service and that he had accrued 309 days of time lost.
Title 10 of the United States Code, section 1552, as amended, does not permit any redress by the Army Board of 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 contention that his court-martial conviction was unjust, however, it finds insufficient evidence to support this claim. 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.
2. The applicant’s record is void of facts and circumstances concerning events that led to his general court-martial conviction and discharge from the Army. However, there is a properly constituted DD Form 214 on file, which was authenticated by the applicant, and that contains the authority and reason for his discharge. Therefore, the Board presumes government regularity in the discharge process.
3. Lacking independent evidence to the contrary, the Board is compelled to presume that the applicant’s trial by court-martial was warranted by the gravity of the offenses with which he was charged and that his conviction and discharge were effected in accordance with the applicable law and regulations in effect at the time. Therefore, since the applicant failed to provide independent evidence to show that his general court-martial conviction was unjust, the Board finds there is insufficient evidence to support clemency in this case.
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
__JH____ __KAK__ __RA___ DENY APPLICATION
| CASE ID | AR2001063474 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2002/02/05 |
| TYPE OF DISCHARGE | (DD) |
| DATE OF DISCHARGE | 19561004 |
| DISCHARGE AUTHORITY | AR 635-204 . . . . . |
| DISCHARGE REASON | |
| 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 | CY2002 | 2002078721C070215
EVIDENCE OF RECORD : The applicant's military records show: Court-Martial Order Number 17, published by Headquarters, Fourth United States Army, dated 14 April 1958. Army Regulation 635-204 provided the policy for discharge of enlisted personnel pursuant only to approved sentences of a general court-martial empowered to impose a dishonorable discharge.
ARMY | BCMR | CY2013 | 20130013085
Application for correction of military records (with supporting documents provided, if any). The applicant's military service records are not available to the Board for review. The evidence of record shows that during the period of service under review the applicant was AWOL on three occasions, convicted by special court-martial, and issued a BCD.
ARMY | BCMR | CY2005 | 20050005998C070206
This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. On 31 December 1964, the applicant was discharged accordingly. It stated that an enlisted person will be discharged with a bad-conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad-conduct discharge and...
ARMY | BCMR | CY2012 | 20120006315
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. The applicant's military records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.
ARMY | BCMR | CY2012 | 20120004162
On 5 February 1971, the applicant was discharged under the provisions of Army Regulation 635-204, by reason of SPCM with a bad conduct discharge. The applicant provides military medical treatment record that shows he was interviewed by military medical personnel on 8 June 1970, and showed borderline schizophrenia. There is no evidence of record or independent evidence provided by the applicant showing he suffered from a physical or mental condition that would have supported his separation...
ARMY | BCMR | CY2011 | 20110003177
The applicant requests that his bad conduct discharge (BCD) be upgraded to a general discharge. Army Regulation 635-200 (Personnel Separations), paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. The available evidence shows he was convicted by a general court-martial for being AWOL.
ARMY | BCMR | CY2012 | 20120021447
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. He was sentenced to confinement at hard labor for 1 year, forfeiture of all pay and allowances, and to be discharged with a bad conduct discharge. His conviction and discharge were effected in accordance with applicable laws and regulations...
ARMY | BCMR | CY2009 | 20090008750
The applicant requests that his bad conduct discharge be upgraded to a general discharge under honorable conditions. The applicant's record contains a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 5 January 1994, which shows the applicant submitted an application to the Army Discharge Review Board (ADRB) requesting that his bad conduct discharge be upgraded to a general discharge under honorable conditions. The...
ARMY | BCMR | CY2013 | 20130004560
IN THE CASE OF: BOARD DATE: 7 November 2013 DOCKET NUMBER: AR20130004560 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Army Regulation 635-204, in effect at the time, provided that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial empowered to impose a dishonorable discharge. Records show the applicant satisfactorily completed training, was promoted to SP4/E-4, and he was honorably discharged to reenlist in the RA after...