RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 12 April 2007
DOCKET NUMBER: AR20060010198
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. Gerard W. Schwartz
Acting Director
Mr. Michael L. Engle
Analyst
The following members, a quorum, were present:
Mr. Curtis L. Greenway
Chairperson
Mr. Michael J. Flynn
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 honorable.
2. The applicant states, in effect, that he wants his discharge upgraded so that he can receive veteran benefits and a military funeral when the time arrives. He further states that, since his discharge, he has not been in any trouble and is proud to have served.
3. The applicant provides a copy of his National Archives and Records Administration (NA) Form 13038 (Certification of Military Service) and two letters of support indicating, in effect, that since his discharge he has worked hard and been a good citizen.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records are not available for review. However, there are sufficient documents available to conduct a fair and impartial review of this specific request.
2. On 31 August 1955, the applicant enlisted in the Regular Army for 3 years. He attained the rank of private first class, pay grade E3.
3. On 14 May 1956, the applicant was convicted by a summary court-martial of being absent without leave for 4 days. His sentence consisted of reduction to private, pay grade E1, forfeiture of $25.00 pay for 1 month and to perform hard labor without confinement for 1 month.
4. Charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 121, Larceny, for stealing, from a fellow Soldier while he was asleep in his room, about $35.00 in Military Payment Certificates, about $15.00 in Deutsche Marks, and about $10.00 in United States currency, for a total value of about $60.00.
5. On 18 November 1957, the applicant pled guilty before a panel of members at a general court-martial to the charge and specification. The members of the court-martial found him guilty of the charge and specification and sentenced him to total forfeitures, confinement at hard labor for 1 year, and a dishonorable discharge.
6. On 18 November 1957, the Staff Judge Advocate summarized the applicant's service and recommended approval of his sentence, but also recommended that so much of the sentence pertaining to dishonorable discharge be suspended until the applicant's release from confinement or until completion of appellate review, which ever occurred later.
7. On 21 November 1957, the convening authority approved the sentence, and except for the part extending to a dishonorable discharge, ordered the sentence be executed.
8. On 7 January 1958, the Board of Review, United States Army, affirmed the sentence.
9. General Court-Martial Order Number 115, Headquarters, United States Disciplinary Barracks, New Cumberland, Pennsylvania, dated 18 February 1958, provided that the sentence had been affirmed pursuant to Article 66, UCMJ. Furthermore, it stated that the provisions of Article 71c, UCMJ, had been complied with, and the sentence would be duly executed, but the execution of that portion adjudging dishonorable discharge was suspended until the applicant's release from confinement.
10. The applicant's Certification of Military Service shows that he was dishonorably discharged on 17 November 1958.
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. Therefore, there is no legal basis for granting the applicant's request for relief.
2. The applicant's good post-service conduct is noted. However, it does not sufficiently mitigate the criminal act he committed during his military service so as to warrant an upgrade of his discharge to honorable.
3. However, a dishonorable discharge is excessive punishment for the $60.00 larceny offense of which the applicant pled guilty and was convicted. Even though the stolen funds were from a fellow Soldier while he was sleeping in his room, these aggravating circumstances were not so troubling and the amount taken was not so great as to be shocking even in 1957. The applicant also freely confessed to his offense upon investigation, did not attempt to place the blame
on another Soldier, and assisted the government by pleading guilty at his trial. Therefore, as a matter of equity, the applicant's discharge should be upgraded to a bad conduct discharge.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
__EM___ ___CLG__ __MJF__ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his discharge to a bad conduct discharge.
2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the upgrade of his discharge to honorable.
__Curtis L. Greenway____
CHAIRPERSON
INDEX
CASE ID
AR20060010198
SUFFIX
RECON
DATE BOARDED
20070412
TYPE OF DISCHARGE
DD
DATE OF DISCHARGE
19581117
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1.
110.000
2.
3.
4.
5.
6.
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