RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050016028


      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. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 that his dishonorable discharge be upgraded to a
general under honorable conditions discharge.

2.  The applicant states, in effect, that the punishment for his crime was
too harsh and that the normal sentence for the offenses committed would
have been 6 months in the stockade and a forfeiture of 2/3 of his pay for 6
months.

3.  The applicant contends that his offense occurred during peacetime after
he had returned from duty in Korea.  The applicant continues that he was a
truck driver and had access to drive trucks whenever he wanted.  The
applicant further contends that he sold five gallons of gas to a Japanese
man.

4.  The applicant argues that when the incident occurred he was with two
men, one of which was an addict and the other was a drug user.  He further
argues that he was used by these men and that the punishment for his crimes
was too harsh.

5.  The applicant concludes that his entire record should be considered
while making a determination regarding his application and that if his
discharge was upgraded, he would be able to apply for Veterans benefits.

6.  The applicant provides five letters of reference in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The facts and circumstances of the applicant'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 applicant's records contain a copy of the U.S. Board of Review
Decision document, dated 7 June 1954.

3.  The applicant's records include the Review of The Staff Judge Advocate,
dated 10 May 1954. The "Military Background" section of this document shows
the applicant enlisted on 7 February 1952 for a period of 3 years and that
he had no prior military service.  This document further shows that the
applicant was awarded the Korean Service Medal, the United Nations Medal,
and the National Defense Service Medal.  This document also shows that the
applicant received punishment under Article 15 of the Uniform Code of
Military Justice on two separate occasions.
4.  The applicant's record also includes General Court Martial Order Number
4, dated 17 May 1954.  This document shows that the applicant pled guilty
at a general court-martial to two specifications of wrongfully
appropriating a 2 1/2 ton truck, stealing 240 gallons of gas and being
AWOL.

5.  The applicant was sentence to a dishonorable discharge from the
service, confinement at hard labor for 7 years, and a forfeiture of all pay
and allowances.  On 17 May 1954, the Convening Authority approved only that
part of the sentence extending to a Dishonorable discharge, a forfeiture of
all pay and allowances and confinement for 2 years and 6 months.

6.  The decisional document further shows that the Board of Review affirmed
the general court-martial and found that the findings of guilty and the
sentence were approved by proper authority, correct in law and fact as
determined on the basis of the applicant's entire record.

7.  Evidence of record shows that on 21 December 1954, the Chief of
Corrections Division announced that restoration to duty and clemency in the
applicant's case had been disapproved.

8.  The applicant's records contain a United States of America, Certificate
of Military Service.  This certificate shows that the applicant served
during the period 7 February 1952 through 3 May 1954 and that his service
was terminated by a Dishonorable Discharge in the grade of private.

9.  The applicant provided eight letters from various employers and co-
workers that state the applicant is a very honest, sincere and respected
worker.   Each of the authors stated that it was a pleasure to work with
the applicant.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dishonorable discharge should be
upgraded to a general under honorable conditions discharge.

2.  Records show that the applicant was convicted by a general court
martial for wrongfully appropriating a 2 1/2 ton truck on two occasions,
stealing 240 gallons of gasoline valued at $150.00, and for without
authorization, absenting himself from his unit and that he was sentenced to
a dishonorable discharge, confinement at hard labor for 7 years, and a
forfeiture of all pay and allowances.

3.  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.

4.  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.
5.  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

_EEM___   _JCR___  _JTM ___  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.





                                      _John T. Meixell____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016028                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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