PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 December 2002
         DOCKET NUMBER: AR2002074435


         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.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Conrad V. Meyer		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his bad conduct discharge be upgraded to a more favorable discharge.

3. The applicant states, in effect, that he enlisted at the age of 17 and was told by his first sergeant in Germany that he was an alcoholic. He goes on to state that it was general knowledge in the unit that he had a drinking problem and often times he would black out and awaken laying on the streets and absent without leave (AWOL). He also states that at the time, the mindset was that he was just behaving badly. Help was never offered, just company punishment initially and then courts-martials. He further states that he did have a problem, not a disciplinary problem, but a medical problem that has since been recognized as such. He continues by stating that since his discharge, he has gone from being a high school dropout and alcoholic to becoming an ordained minister, a radio/TV personality and an active member in the community deeply involved in helping people fight chemical dependency. He has completed his bachelor’s degree and will complete his master’s degree this year. He no longer has a problem with alcohol and feels blessed in that regard. In support of his application, he submits a letter of support from his brother-in-law, a retired Army officer, and numerous letters of support and congratulation from Federal, State and local officials for his work in the community.

4. The applicant’s military records were destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri, which destroyed millions of service records. However, reconstructed records show that he initially enlisted in the New York Army National Guard (NYARNG) on 13 January 1953,at the age of 17, for a period of 3 years. He continued to serve in the NYARNG until he was honorably discharged on 29 June 1953, for the purpose of enlisting in the Regular Army. He enlisted in the Regular Army on 30 June 1953 and was again honorably discharged on 14 October 1954, for the purpose of immediate reenlistment. He reenlisted on 15 October 1954,for a period of 3 years, while he was stationed in Germany. His new expiration of term of service (ETS) was 14 October 1957.

5. On 24 May 1956, he was convicted by a summary court-martial of being absent without leave (AWOL) from 17 May to 19 May 1956 (2 days). He was sentenced to a forfeiture of pay and restriction.

6. On 2 October 1956, he was convicted by a special court-martial of being AWOL from 17 August to 5 September 1956 (19 days). He was sentenced to confinement at hard labor for 3 months (suspended for 3 months) and a forfeiture of pay.

7. On 28 March 1958, while stationed at Fort Wadsworth, New York, the applicant was convicted, pursuant to his pleas, by a General Court-Martial of being AWOL from 5 August 1957 to 7 February 1958 (183 days). He departed on his extended AWOL 2 months prior to his ETS. He was sentenced to confinement at hard labor for 1 year, forfeiture of all pay and allowances and a bad conduct discharge. However, the convening authority approved only so much of the sentence as provided for confinement at hard labor for a period of 9 months, forfeiture of all pay and allowances and a bad conduct discharge. He was transferred to the United States Disciplinary Barracks at New Cumberland, Pennsylvania, to serve his sentence.

8. The United States Army Board of Review, Office of the Judge Advocate General, affirmed the findings and sentence as approved by the convening authority on 22 May 1958.

9. Accordingly, he was discharged under other than honorable conditions on 7 November 1958, pursuant to a duly reviewed and affirmed court-martial conviction. He had served 4 years and 14 days of total active service and had 92 days of lost time prior to his ETS due to AWOL and 389 days of lost time due to AWOL and confinement, subsequent to his ETS.

10. A review of the record of trial indicates that the applicant plead guilty to the charges against him and prior to sentencing, his defense counsel submitted a copy of a statement rendered by his previous commander and noncommissioned officer (NCO) at his trial by special court-martial. They both indicated that his performance in the field was excellent but in garrison, it left something to be desired. His NCO indicated that he was excellent in all types of duty and was above average when compared to others in his section. Both recommended his retention in the Army. A statement was also submitted from a warrant officer who employed the applicant after duty hours at the Officer’s Open Mess. He indicated that the applicant was a well-respected employee and would have no problem employing him again at the club.

11. The applicant made a sworn statement in which he stated that he realized that he would have to pay for his offenses against the government and the Army and that he realized that those offenses were also against him, his family, his country and the Army as well. He went on to state that he believed that with a punitive discharge, he would never be a good citizen to any community, but that he hoped to someday be a good solid citizen. He also stated that he had never committed any crimes nor did he intend to and that while he was AWOL, he learned a lot about accepting responsibility and putting it into practice. He asserted that he could be an asset to the Army and requested to be retained. He also affirmed that he had 11 years of education.

12. A review of the voluminous supporting documents submitted by the applicant which date from 1974 to 2001, show that the applicant has been actively involved in his community with numerous charitable organizations which have been recognized at all levels of government. He attained his bachelor’s degree and was awarded his Certificate of Pastoral Studies in 2001.

13. The Board previously denied his request for an upgrade of his discharge on 19 March 1975. However, the case summary for that action is not present in the available records. Accordingly, a de nova review of the case was warranted in lieu of the case being considered as a reconsideration of his previous request.

14. Army Regulation 635-5 provides the authority for the issuance and preparation of discharge documents. It provides in pertinent part, that the purpose of discharge documents are to provided the individual with documentary evidence of his or her military service during the period in question. It is a vital record for interested Government agencies, which assist the veteran in obtaining the rights and benefits to which they may be entitled. Accordingly, it is imperative that the information be accurate and properly characterize the service covered by the document.

15. Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

CONCLUSIONS:

1. Trial by court-martial was warranted by the gravity of the offense charged. 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.

2. Although discharge documents are intended to reflect the characterization of a member’s service during the period covered by that document, there are rare instances where it is appropriate to change that characterization, as an act of clemency, to reflect post-service conduct.

3. While the Board does not condone the applicant’s conduct at the time, it is clear that his absences served to hurt him more than anyone. The evidence of record shows that with the exception of his period of going AWOL, he was otherwise a good soldier. He clearly indicated at his trial by a general court-martial, that it was his desire to be a good citizen of any community upon his release. It appears that just prior to being discharged, the applicant did learn the concept of responsibility, he just learned it a little later than desired.
4. The supporting documents show that the applicant has progressed through life over the past 44 years from that of a high school dropout with a punitive discharge to that of a college educated minister, who has spent his life since discharge giving back to his community. Prior to attaining his Certificate of Pastoral Studies, he has been recognized at all levels of government for his contributions of his community and to his country.

5. The Board finds his record of devoted service to his community to be exceptional and to far outweigh the offenses for which he was convicted. While the Board does not feel that his service should be deemed fully honorable, the Board does feel that given his many years of selfless service to his community, an act of clemency is warranted in this case. Accordingly, his discharge should be upgraded to a discharge under honorable conditions.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with a General Discharge Certificate on 7 November 1958, by reason of Secretarial Authority (Army Regulation 635-200, paragraph 5-3).

2. That the Department of the Army issue to the individual concerned a General Discharge certificate from the Army of the United States, dated 7 November 1958, in lieu of the bad conduct discharge of the same date held by him.

BOARD VOTE:

___cla __ __cvm___ __tsk____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Celia L. Adolphi_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002074435
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/12/10
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1958/11/07
DISCHARGE AUTHORITY	AR635-204
DISCHARGE REASON	GCM
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 675	144.6800/A68.00
2.
3.
4.
5.
6.