RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 October 2006
      DOCKET NUMBER:  AR20050018219


      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. Paul Wright                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Sherry J. Stone               |     |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 character of service of his discharge be
changed from a Dishonorable Discharge (DD) to a General Discharge (GD)
under honorable conditions.

2.  The applicant states, in part, he was only 18 years old and not mature.
 He further states he made a lot of mistakes in the military that he wishes
he could take back and do over again.  He adds that he had an attitude
problem and problems with his Battery Commander; they did not get along.
The Commander indicated that he was going to get him.  He was one of 27
whites and 125 blacks in the company.  The commander treated the blacks
better than the whites.  He now understands he should have handled matters
differently.  Since his discharge, he has turned his life around.  He has
not been in trouble with the law, went into the construction business and
has done well for himself and his family. Additionally, he has been
involved with charitable causes because he wanted to give back to people,
especially children, in need.

3.  The applicant provides a narrative statement, a copy of his resume and
9 character reference letters.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 7 June 1957.  The application submitted in this case is
dated
13 December 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  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
applicant’s records were lost or destroyed in that fire.  This case is
being considered using
reconstructed records, which primarily consist of the official Record of
Trial which was obtained from the Office of the Clerk of Court, U.S. Army
Judiciary, and those documents supplied by the applicant.

4.  On 29 November 1954, the applicant enlisted in the Regular Army for a
period of 3 years.  He completed all training and was qualified as a
parachutist and held the military occupational specialty (MOS) of
cannoneer.

5.  On 22 July 1955, the applicant was convicted by a Special Court-Martial
for disobeying a lawful order of a non-commissioned officer on 14 July
1955.  The sentence included confinement at hard labor for 6 months and
forfeiture of $55.00 per month for 6 months.

6.  On 16 November 1956, the applicant was convicted by a Special Court-
Martial for failing to go to his place of duty on 22 October 1956.  The
sentence included hard labor without confinement for 30 days and forfeiture
of $43.00.

7.  On 14 December 1956, the applicant was convicted by a Summary Court-
Martial for failing to obey a lawful order.  Punishment included hard labor
without confinement for 30 days and forfeiture of $40.00.

8.  On 1 March 1957, the applicant pled guilty at a General Court-Martial
to being disrespectful towards an officer on 14 January 1957, 2
specifications of failing to obey a lawful order of an officer on 14
January 1957, and for assaulting an enlisted Soldier by means likely to
produce bodily harm (stamping with the feet) on 24 January 1957.  The
sentence included a Dishonorable Discharge, forfeiture of all pay and
allowances, and confinement for 13 years and 6 months.

9.  On 4 March 1957, the Convening Authority modified the sentence in
accordance with a pre-trial agreement to reduce that portion pertaining to
confinement to only 1 year.

10.  On 29 March 1957, the US Army Board of Review, Office of The Judge
Advocate General, affirmed the sentence and, on 8 April 1957, the applicant
acknowledged receipt and his right to appeal to the Court of Military
Appeals.

11.  On 9 May 1957, General Court-Martial Order Number 183, published by
Headquarters, Fort Crowder, Missouri announced that the sentence had been
affirmed pursuant to Article 66.  The applicant was committed to the Branch
United States Disciplinary Barracks, Fort Crowder, Missouri for service of
his sentence to confinement.

12.  On 7 June 1957, the applicant was dishonorably discharged from active
duty.  He had 1 year, 10 months, 0 days of active Federal creditable
service.  Additionally, he had 251 days of lost time, presumably due to
confinement.

13.  On 9 July 1957, the Commandant, U.S. Disciplinary Barracks was
notified that the US Army Clemency and Parole Board had reviewed the
applicant's case and had directed that clemency be disapproved.

14.  The Military Justice Act of 1983 (Public Law 98-209), provides, in
pertinent part, that military correction boards may not disturb the
finality of a conviction by court-martial.  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 change a discharge due to matters which should
have been raised in the appellate process, rather it is only empowered to
change the severity of the sentence imposed in the court-martial process 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provides letters of recommendation from community
leaders, clergy, attorneys-at-law, etc. attesting to his good character and
his community service.

2.  The Board considered the available records and punishments received by
the applicant.  It was noted the applicant's general court-martial
conviction was for disrespect and disobedience, and assault by stamping on
a fellow Soldier.  Disrespect and disobedience are purely military
offenses; the assault charge was the most serious and for it the applicant
was given a DD.

3.  The applicant has lived with a DD for almost 50 years.  He has become a
good citizen, married, raised a family, started a construction business,
and contributed to his community.  In view of his almost 50 years with a DD
for stamping on a fellow Soldier, and in view of his post-service
achievement, it would be in the interest of justice, as a matter of
clemency, to remove the stigma of the DD.

4.  In determining the appropriate characterization of the applicant's
service, it is noted that today the purely military offenses committed by
the applicant would most likely have resulted in his receiving nonjudicial
punishment (NJP) under Article 15, Uniform Code of Military Justice.
Additionally, today he probably would have been separated with an Under
Other Than Honorable Conditions (UOTHC) discharge for the assault charge.
Therefore, based on the applicant's overall record of disciplinary
infractions and the nature of those infractions, it would not be
appropriate to upgrade his discharge to one under honorable conditions, but
it would be appropriate as a matter of clemency to upgrade his DD to a
UOTHC discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7June 1957; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 June 1960.  The applicant did not file within the 3-year
statute of limitations; however, based on the available evidence or
argument, it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__klw___  __tmr___  __sjs___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board
unanimously determined during their review that the evidence presented was
not sufficient to warrant a recommendation for relief.  As a result, the
Board recommends that the individual’s request be denied based on the fact
that there is no finding of error or injustice that would warrant upgrading
the characterization of the applicant’s military service.



                                  Kenneth L. Wright
                            ______________________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018219                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061003                                |
|TYPE OF DISCHARGE       |(DD)                                    |
|DATE OF DISCHARGE       |19570607                                |
|DISCHARGE AUTHORITY     |AR 635-204 . . . . .                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |106.0008                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]