RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            15 AUGUST 2006
      DOCKET NUMBER:   AR20060000936


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Ms. Rose Lys                      |     |Member               |
|     |Mr. John Heck                     |     |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, in effect, that his dishonorable discharge be
upgraded.

2.  The applicant states, in effect, that the type of discharge that he
received is too harsh considering the nature of his offenses.

3.  The applicant provides in support of his application a letter from one
of his associates dated 26 September 2005, explaining what he believes to
be the incidents that brought about his dishonorable discharge, and
requesting that the dishonorable discharge be pardoned.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 26 June 1950.  The application submitted in
this case is dated 23 December 2005.

2.  The applicant's military records were lost or destroyed in the National
Personnel Records Center fire of 1973.  Information herein was obtained
from reconstructed personnel records.

3.  He was inducted into the Army on 10 July 1943.  He successfully
completed his training as a clerk typist.

4.  The applicant was convicted by a special court-martial on 16 October
1946, of being absent without leave (AWOL) from 28 August 1946 until 9
October 1946.  He was sentenced to confinement at hard labor for 3 months,
a reduction in pay grade, and a forfeiture of pay in the amount of $37.00
per month for 3 months.

5.  On 30 October 1946, the applicant was convicted by a special court-
martial of feloniously taking, stealing, and carrying away several bottles
of alcohol, property of the Officers Mess.  He was sentenced to confinement
at hard labor for 4 months, and a forfeiture of pay in the amount of $37.00
per month for 6 months.

6.  He completed 3 years, 4 months and 21 days of net active service prior
to being honorably discharged for the convenience of the Government on 18
June 1947.  The Enlisted Record and Report of Separation (WD AGO From 53-
55) shows that at the time of his discharge, he had 198 days of lost time.

7.  The available records indicate that the applicant was approved for a
waiver of lost time on 31 March 1948, to enlist in the Army.  Accordingly,
he reentered the Army on 21 January 1949.

8.  On 9 January 1950, the applicant was convicted by a summary court-
martial of failure to repair at the proper appointed place for duty.  He
was sentenced to a reduction in pay grade, a forfeiture of pay in the
amount of $11.00 a month for 1 month, and restriction for 18 days.

9.  He was convicted by a summary court-martial on 7 February 1950, of
failure to repair at the proper appointed place of assembly for reveille.
He was sentenced to a forfeiture of pay in the amount of $3.50 a month for
1 month.

10.  The applicant was convicted by a general court-martial on 28 April
1950, of larceny (black marketing), and forgery (unlawful possession with
intent to defraud and wrongfully altering an enlisted man's identification
card).  He was sentenced to a dishonorable discharge and confinement at
hard labor for 3 years.

11.  The convening authority approved the sentence as adjudged.
Accordingly, on 26 June 1950, the applicant was dishonorably discharged
under the provisions of Army Regulation 615-364.  He had completed 4 years,
7 months and 26 days of net active service.

12.  In the letter dated 26 September 2005, which was submitted in support
of the applicant's appeal, an associate explains that he was petitioning
the assistance of a New York Congressman to review the applicant's
situation.  In the letter he states that during his initial period of
enlistment, the applicant fell in love while he was in Germany and he
reentered the Army in January 1949 in order to return to Germany to be with
his love and their son who was born on 6 February 1947.  He states that
taking care of a love child during those years in Germany was extremely
difficult and that money was of little value there, the main medium of
exchange was cigarettes.  In the letter, the associate states that the
applicant did not become involved in the trade of cigarettes; however, he
made the mistake of accepting post exchange cards from some of his friends
who were returning to the United States, for the possibility of using the
cards if he had the opportunity.






13.  The associate went on to state that the problems arose when a company
officer developed an interest in the applicant's "sweetheart" and tried to
find a means of getting the applicant removed from the area.  He states
that one day while the applicant was on duty, the officer directed an
inspection in the Barracks and came upon the unlocked locker which was
opened without permission.  He states that the post exchange cards were
seen and the applicant was arrested and charged with fraud, forgery,
fraudulent utterance, and theft.  In the letter, the associate states that
the applicant was furnished an offer to have the charges dropped against
him if he would go to Korea to the front lines and he refused.  He states
that after being held for 3 months without the benefit of a trial, the
applicant was tried, found guilty, and sentenced to 3 years in prison.  He
states that upon the applicant's release from prison, he was given
permission by his parole officer to go to Germany and marry his son's
mother, which he did and from this union six children were born, fifteen
grandchildren, and fifteen great grandchildren.  The associate concluded
his letter by stating that the applicant struggled for years with the guilt
and problem involved with being furnished a dishonorable discharge.  He
states that the applicant is 81 years old and is one of the most honest and
kind-hearted individuals that he has ever met, and he wishes that before he
dies, he could be pardoned.

14.  Army Regulation 615-364, then in effect, set forth the conditions
under which enlisted personnel could be discharged with a dishonorable or
bad conduct discharge.  It stated that such discharge could only be issued
pursuant to an approved sentence of a general or special court-martial.

15.  Title 10, United Stated Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that 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
modify the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses
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.  The type of discharge directed and the reasons therefore appear to be
appropriate considering the facts of the case.
3.  The Board has noted the contentions made by the applicant and his
associate.  However, they are not sufficiently mitigating to warrant relief
when compared to the seriousness of his offenses.  Additionally, in
accordance with the applicable law, this Board is not empowered to set
aside a court-martial conviction.  It is only empowered to change the
severity of the imposed sentence if clemency is determined to be
appropriate.  Considering the numerous acts of misconduct, which resulted
in his court-martial convictions, clemency does not appear to be
appropriate in this case.  However, the applicant is not precluded from
applying to the United States Pardon Attorney concerning this matter.

4.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SP____  ___RL__  ___JH ___  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.




                                  _____Shirley Powell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000936                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |19500626                                |
|DISCHARGE AUTHORITY     |AR 615-364                              |
|DISCHARGE REASON        |AS A RESULT OF A GCM CONVICTION         |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  708  |144.7100/CONDUCT TRIABLE BY CM          |
|2.  715                 |144.7200/LARCENY                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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