| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Ms. Karol A. Kennedy | Chairperson | ||
| Mr. Melvin H. Meyer | Member | ||
| Mr. Allen L. Raub | Member |
APPLICANT REQUESTS: In effect that his dishonorable discharge (DD) be upgraded and his benefits be restored.
APPLICANT STATES: In effect, that his discharge should be upgraded based upon his combat service and that he has carried the burden of having a DD long enough.
EVIDENCE OF RECORD: The applicant's military records were lost or destroyed in a fire at the National Personnel Records Center (NPRC) fire in 1973. The information herein was gleaned from a copy of a Certification of Military Service (NA Form 13038), dated 12 February 2001, published by the NPRC, National Archives and Records Administration (NARA) that was submitted along with the application.
The NA Form 13038 confirmed that the applicant entered the Regular Army on
2O November 1952, and that he continuously served on active duty until 2 June 1954, at which time he was dishonorably discharged, in the rank of private.
On 26 October 1953, the applicant was convicted by a special court-martial for assault consummated by a battery and for twice failing to go his appointed place of duty. He was sentenced to four months confinement and to forfeit $55.00 per month for four months. The convening authority suspended the confinement for a period of four months.
On 30 March 1954, the applicant was found guilty by a general court-martial of being absent from leave (AWOL) from 9 November 1953 to 19 November 1953 and two specifications of robbery. The resultant sentence included a forfeiture of all pay and allowances, a reduction to the rank and pay grade of private/E-1, confinement at hard labor for 10 years, and a DD. On 2 June 1954, the convening authority approved the sentence and ordered all but the DD portion of the sentence to be executed.
On 6 August 1954, the United States Army Court of Military Review examined the record of trial and reduced the findings of specifications 1 and 2 of the additional charge from robbery to the lesser included offense of larceny of some value and affirmed only so much of the sentence as provides for a DD, total forfeitures of pay and allowances, and confinement at hard labor for 7 years.
The applicant petitioned the United States Court of Military Appeals for a new trial and it was denied on 8 November 1954.
The unexecuted portion of the sentence pertaining to the DD was ordered executed and the applicant was separated accordingly.
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 contentions of the applicant that his discharge should be upgraded based on his combat service and because he has suffered long enough with his DD. However, the Board finds none of these factors are sufficiently mitigating to warrant the requested relief.
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. 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 offenses with which he was charged.
3. Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge received by the applicant appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service. Therefore, the Board concludes that clemency is not warranted in this case.
4. 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.
5. 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
__KAK __ __MHM__ __ALR_ _ DENY APPLICATION
| CASE ID | AR200268221 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2002/06/18 |
| TYPE OF DISCHARGE | (DD) |
| DATE OF DISCHARGE | 19540602 |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | GCM |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 105.0100 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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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 | CY2004 | 20040006627C070208
The applicant’s military records are not available to the Board for review. There is no evidence and the applicant has not provided evidence that shows the FSM's superiors made it hard on him because he was black or documentation that shows white Soldiers refused to take orders from him. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.
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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 | CY2013 | 20130019610
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. Army Regulation 615-364, in effect at the time, stated an enlisted person would be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing dishonorable discharge. His conviction and sentence by general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
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I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual. EVIDENCE OF RECORD : The applicant's military records show: The evidence of record also does not support counsel's contention that the applicant lacked maturity.
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The applicant, as the wife of the deceased former service member (FSM), requests, in effect, that clemency in the form of an upgrade to his discharge be granted. When the FSM returned, he was discharged with a dishonorable discharge. The FSM’s military records are not available to the Board for review.
ARMY | BCMR | CY2002 | 2002068597C070402
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 | CY2007 | 20070009910
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 January 2008 DOCKET NUMBER: AR20070009910 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The applicants military records are not available to the Board for review. The Board of Review affirmed the applicant's sentence, which included a dishonorable discharge.
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One previous conviction was considered. On 18 March 1954, the applicant was discharged under the provisions of Army Regulation 615-364 (Enlisted Personnel Discharge Dishonorable and Bad Conduct), by reason of court-martial, and he received a DD. As a result, neither his overall record of service or post-service conduct support clemency in this case.
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