RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 April 2005
      DOCKET NUMBER:  AR20040006627


      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. Michael J. Fowler             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Ann M. Campbell               |     |Member               |
|     |Ms. Margaret V. Thompson          |     |Member               |

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant, as the brother of the deceased former service member
(FSM), requests, in effect, that clemency in the form of an honorable
discharge be granted for his late brother.

2.  The applicant states, in effect, that the FSM enlisted in the Army so
he could help take care of the family.  He served in World War II and the
Korean War and was awarded the Purple Heart.

3.  The applicant states the FSM was later assigned to the states in a
training position.  The applicant further states at that time in the
service white Soldiers refused to take orders from any blacks.  The FSM's
superiors made it hard for him because he was black, and out of confusion
and frustration, he went absent without leave (AWOL) and was forced out of
the Army.

4.  The applicant provides five NA Forms 13038 (United States of America
Certification of Military Service) with ending periods of 31 October 1945,
16 September 1948, 18 September 1951, and 22 June 1954.

CONSIDERATION OF EVIDENCE:

1.  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.  It is believed that the
FSM’s records were lost or destroyed in that fire.  However, there were
sufficient documents remaining in a reconstructed record for the Board to
conduct a fair and impartial review of this case.  In addition, the record
of his trial by court-martial was available.

2.  A NA Form 13038 shows the FSM enlisted in the Army from 30 September
1943 through 31 October 1945 and was honorably separated.  On 1 November
1945, he reenlisted for a three-year term of service.

3.  The applicant's records contain information from the Hospital Admission
Cards created by the Office of The Surgeon General of the Army.  This
record showed the FSM was hospitalized on 9 April 1945 for a wound he
received to the knee region while serving in the European theatre.

4.  A NA Form 13038 shows the FSM served in the Army from 1 November 1945
through 16 September 1948.  On 17 September 1948, he reenlisted for a three-
year term of service.

5.  A NA Form 13038 shows the FSM served in the Army from 17 September 1948
through 18 September 1951.  On 19 September 1951, he reenlisted for a six-
year term of service.

6.  On 12 March 1952, the FSM was convicted by a summary court-martial of
being incapacitated for proper performance of duties due to previous
indulgence in intoxicating liquor.  His sentence consisted of a forfeiture
of $50.00.

7.  On 6 November 1952, the FSM was convicted by a summary court-martial of
breaking restriction.  His sentence consisted of a reduction to the grade
of private first class/pay grade E-3 and a forfeiture of $50.00.

8.  On 11 February 1953, the FSM was convicted by a summary court-martial
of breaking restriction.  His sentence consisted of a forfeiture of $65.00
and confinement at hard labor for one month.

9.  On 17 March 1953, the FSM was convicted by a summary court-martial of
being drunk and disorderly and breaking restriction.  His sentence
consisted of a forfeiture of $65.00 and confinement at hard labor for one
month.

10.  A DD Form 458 (Charge Sheet), dated 19 January 1954, shows charges
were preferred against the FSM for being AWOL for the period 3 August 1953
through 16 January 1954.

11.  Records show that a pre-trial investigation was conducted on 21
January 1954.  The investigating officer questioned witnesses and obtained
sworn statements.  The FSM did not desire counsel during the investigation
or desire to exercise his right to cross-examine witnesses.

12.  On 29 January 1954, the FSM was convicted pursuant to his plea by a
general court-martial of being AWOL.  His sentence consisted of a
forfeiture of all pay and allowances, confinement at hard labor for six
months, and a dishonorable discharge.  The convening authority suspended
the dishonorable discharge until the accused's release from confinement or
until completion of the appellate review, whichever was later.  The action
did not provide for automatic remission of dishonorable discharge.

13.  Records show that during the course of the general court-martial the
FSM pleaded guilty to the AWOL charge and elected not to appear as a
witness in his own behalf or submit a statement.  The FSM further
acknowledged that he understood his rights.

14.  On 29 January 1954, after consulting with counsel, the FSM was advised
of his rights regarding appellate counsel under the provisions of the
Uniform Code of Military Justice (UCMJ), Article 70, and the Uniform Rules
of Procedure for Processing in the event his record of trial was referred
to a board of review.

15.  On 25 February 1954, the Department of the Army, Office of The Judge
Advocate General, Board of Review affirmed the FSM's sentence and the
finding of guilty.

16.  On 22 June 1954, the FSM was separated from the Army with a
Dishonorable Discharge.

17.  In accordance with Title 10 of the United States Code, section 1552,
the authority under which this Board acts, the Army Board for Correction of
Military Records 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.  On 20 May 1992, this Board while
recognizing the FSM's prior periods of honorable service declined to
upgrade his dishonorable discharge to general under honorable conditions as
a matter of clemency.

DISCUSSION AND CONCLUSIONS:

1.  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.
The applicant's contentions were carefully considered; however, the FSM did
not bring any of these contentions to light during the court-martial or
appellate process.  Therefore, there is no basis for this argument.

2.  Evidence of record shows that the FSM consulted with counsel, that he
was advised of his rights, and that he elected not to submit a statement in
his behalf before and during his court-martial.

3.  The FSM's trial by court-martial was warranted by the gravity of the
offense for which he was charged and convicted.  Conviction and discharge
were effected in accordance with applicable law and regulations, and the
discharge appropriately characterizes the misconduct for which he was
convicted.



4.  By law, the Army Board of Correction for Military Records may not
disturb the finality of a court-martial.  The Board is only empowered to
change a discharge if clemency is determined to be appropriate to moderate
the severity of the punishment imposed.

5.  The FSM's entire record of service was considered in this case.
However, given the seriousness of the offense for which he was convicted,
it is determined that clemency by upgrading the characterization of his
last period of service to honorable is not warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ JEV __  __ AMC _  _ MVT __  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  ___       James E. Vick_____
                                             CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040006627                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |14 April 2005                           |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |25 June 1954                            |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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