RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060007705 


	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.  



Director



Analyst


The following members, a quorum, were present:



Chairperson


Member


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, a review of his dishonorable discharge for upgrade or a pardon based on alcoholism being a factor in his court-martial offense and his life for the past 38 years.

2.  The applicant states, in effect, that:

	a.  his history of alcohol abuse extends back to his early and middle teens prior to joining the Army in 1942;

	b.  from 1942 until 1945 he was brought in front of his battery commander for minor charges related to alcohol abuse.  However, he was told as long as he remained a good Soldier everything would be all right;

	c.  upon his return from Germany, his alcohol abuse became worse and he had numerous infractions of the law with civilian authorities;

	d.  his Army National Guard unit was activated in 1951 and he received numerous “Article 15s” and one general (sic-special) court-martial for being drunk on duty, but no offer of treatment for his alcoholism;

	e.  in 1953 he was assigned to the 14th Armored Cavalry in Germany where he was charged with several infractions of regulation while drinking, but he states at no time was he counseled to get treatment for his alcoholism;

	f.  since his discharge in 1953 until 1968, he “wandered in and out of many jobs, jails, hospitals, skid rows”;

	g.  in 1968 a judge sent him to the state hospital for an extended stay and treatment.  Since his release from hospitalization he has returned to full time employment;

	h.  he completed counselor training through the state of Maryland at four colleges and later was employed by the state of Maryland as a certified alcoholism counselor;

	i.  he continued to provide alcohol counseling for persons in the state of Maryland, including those incarcerated in the Maryland state prison system; and 

	j.  before he dies “for my own peace of mind” he would like to have his dishonorable discharge set aside and his rights under the G.I. Bill restored, although he notes the G.I. Bill request is “not necessary”; 
3.  The applicant provides copies of 31 certificates documenting his course completion and counselor training in alcoholism and drug abuse studies from 1972 to 1988 and six certificates of appreciation for his work in alcoholism and drug abuse programs from 1979 to 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he initially enlisted in the Regular Army on 19 May 1942.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 761 (scout).  

2.  The applicant served in the European Theater of Operations from 14 June 1944 to 14 September 1945.  He was discharged on 1 October 1945.  The applicant was awarded the Bronze Star Medal with Oak Leaf Cluster, the Good Conduct Medal, and the European-African-Middle Eastern Campaign Medal with four bronze service stars.  He had completed 3 years, 4 months, and 13 days of active service that was characterized as honorable.

3.  On 25 July 1949, the applicant enlisted in the Ohio Army National Guard for 
a period of three years.  The records show the applicant entered active duty 
on 15 June 1952.  There is no record of active service from 2 October 1945 to 
14 June 1952.  

4.  On 2 October 1952, a special court-martial convicted the applicant of being drunk on duty.  His sentence consisted of restriction for 30 days and partial forfeiture of pay for three months.

5.  On 8 December 1952, the applicant was discharged due to the expiration of his term of service.  He had completed 10 months and 24 days of active service that was characterized as honorable.

6.  On 9 December 1952, the applicant enlisted in the Regular Army for a period of six years.

7.  On 4 April 1953, the applicant was convicted by a summary court-martial for violation of a general regulation (loitering).  His sentence consisted of reduction by one grade, partial forfeiture of pay for one month, and restriction for 30 days.

8.  On 3 June 1953, the applicant was convicted by a general court-martial of larceny of nine hundred Deutsch marks of a value of about two hundred and fourteen dollars and twenty-eight cents from a German citizen.  His sentence consisted of forfeiture of all pay and allowances, confinement for one year, and a dishonorable discharge.

9.  On 8 June 1953, the record of trial was referred to the Staff Judge Advocate (SJA) for review.  

10.  The SJA stated the finding and sentence were correct in law and fact, was appropriate for the offense of which the applicant was found guilty, and recommended the sentence be approved.

11.  On 2 July 1953, the Board of Review, United States Army affirmed the finding of guilty and the sentence.  Headquarters, Branch United States Disciplinary Barracks, New Cumberland, Pennsylvania, General Court-Martial Order Number 659, dated 23 July 1953, ordered the sentence executed.

12.  On 6 August 1953, the applicant was discharged as a result of a court-martial.  The applicant’s discharge was characterized as dishonorable.

13.  Army Regulation 635-364 (Enlisted Personnel Discharge Dishonorable and Bad Conduct), then in effect, provided that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial; and that the appellate review must be completed and affirmed and the sentence ordered duly executed.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The issuance of a pardon is not within the jurisdiction of the ABCMR.

2.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  The Board of Review affirmed the applicant's sentence, which included the dishonorable discharge.  Therefore, the applicant's discharge was not upgraded when his case was reviewed on appeal.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  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.  The applicant's post service achievements and conduct are noted.  However, the applicant’s accomplishments since 1979 are not sufficient to override his conviction for larceny in 1953.  Good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

6.  The applicant’s record of service was carefully considered.  However, given the seriousness of the offense for which he was convicted, it was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis to support the applicant’s request to upgrade his discharge at this time.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___qas__  ___mdm_  ___jtm___  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.




________Mark D. Manning________
          CHAIRPERSON




INDEX

CASE ID
AR20060007705
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.