RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 July 2006
      DOCKET NUMBER:  AR20050015961


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Marla J. N. Troup             |     |Member               |
|     |Mr. William F. Crain              |     |Member               |

      The Board considered the following evidence:

      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 requests the records of her husband, a deceased former
service member (FSM), be corrected by upgrading his dishonorable discharge.

2.  The applicant states, in effect, that the FSM was just a "standbyer."
She continues that the FSM was "caught up with a group of men that
committed a rape and that he was wrongly charged."

3.  The applicant provides eight letters of support, a Certification of
Military Service, and a copy of the FSM's death certificate in support of
this case.

CONSIDERATION OF EVIDENCE:

1.  The facts and circumstances of the FSM's discharge are not available
for review with this case.  However, there is sufficient documentation
available to make a fair and impartial decision in this case.

2.  The FSM's records contain a DD Form 458 (Charge Sheet) which shows that
the FSM's initial date of service was 4 January 1952 for a term of three
years.  This form further shows that charges were preferred against the FSM
on 3 December 1952 for violation Article 116 (Riot) and Article 130
(Housebreaking) of the Uniformed Code of Military Justice (UCMJ).

3.  General Court-Martial Order Number 44, dated 6 March 1953, shows that
the applicant was arraigned and tried by a general court-martial on 27
December 1952, and found guilty of unlawfully participating in a riot by
unlawfully assembling.  The resultant sentence was confinement at hard
labor for four years and a dishonorable discharge.

4.  The FSM's record contain a Review of the Staff Judge Advocate which
shows the FSM was found guilty of violating Article 116 of the UCMJ and was
found not guilty of violating Article 130 of the UCMJ.

5.  Branch United States Disciplinary Barracks General Court-Martial Orders
Number 1078, dated 28 October 1953, show the sentence promulgated in
General Court Martial Order Number 44 was affirmed and executed including
that portion of the sentence to a dishonorable discharge.  The order
indicates the FSM's conviction and sentence were affirmed in accordance
with Articles 66 and 67 of the UCMJ, showing that the U.S. Army Board of
Review reviewed the FSM's case and that no relief was granted on appeal.
6.  On 5 October 1954, by order of the Secretary of the Army, the FSM's
sentence to confinement in excess of three years and six was remitted.

7.  Evidence of record shows that on 19 September 1955, the Chief of
Corrections Divisions considered the FSM's records for clemency.  The Chief
of Corrections Division disapproved restoration to duty and further
clemency in the FSM's case.

8.  The FSM's records contain a United States of America, Certificate of
Military Service.  This certificate shows that the FSM served during the
period 4 January 1952 through 28 October 1953 and that his service was
terminated by a Dishonorable Discharge in the grade of private.

9.  The applicant provided eight letters from various family members and
friends that state the FSM was a very kind and caring person.  Each of the
authors stated that the FSM was also very generous and thoughtful towards
others.

10.  Army Regulation 635-204 (Personnel Separations) provided for
separation of enlisted personnel with a dishonorable discharge pursuant to
an approved sentence of a general court-martial.  This regulation also
provided for separation of enlisted personnel with a bad conduct discharge
based on an approved sentence of a general court-martial or a special court-
martial imposing a bad conduct discharge.

11.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, 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.

12.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.


13.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7,
provides that an honorable discharge is a separation with honor and
entitles the recipient to benefits provided by law.  The honorable
characterization is appropriate when the quality of the member’s service
generally has met the standards of acceptable conduct and performance of
duty for Army personnel (emphasis added), or is otherwise so meritorious
that any other characterization would be clearly inappropriate.  Whenever
there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that FSM's dishonorable discharge should be
upgraded because he was not involved in the incident which resulted in his
dishonorable discharge.

2.  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.

3.  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 sentence imposed.

4.  After review of the applicant’s entire record of service, it was not
considered sufficiently meritorious to warrant clemency in this case.
Given the seriousness of the offenses for which he was convicted, it is
also clear that his service was not satisfactory, thus did not meet the
criterion for discharge under honorable conditions.  Therefore, his
dishonorable discharge is equitable, and there is no basis for upgrading as
requested.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MJNT__  __WDP__  _WFC___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.





                                     _William D. Powers__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015961                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060720                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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