RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   5 April 2007
	DOCKET NUMBER:  AR20060012371 


	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.


	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 bad conduct discharge be changed to either a medical discharge or general discharge.

2.  The applicant essentially states that after his brother joined the Army, his brother lost an eye at Fort Sill, Oklahoma, and was in a coma.  He also states, in effect, that he left his unit at Fort Carson, Colorado without authorization because his company commander would not grant him time to go see his brother.   

3.  The applicant provides an undated self-authored letter and his Honorable Discharge Certificate that was issued to him when he reenlisted in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 February 1958, the date of his discharge from the Regular Army.  The application submitted in this case is dated 11 June 2006.

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 complete military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the majority of the applicant's records were lost or destroyed in that fire.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.  

4.  On 18 April 1957, the applicant was tried and convicted by a general 
court-martial for, without proper authority, absenting himself from his organization on 18 July 1956, and remaining absent until on or about 6 August 1956, and for, without proper authority, and with intent to remain away therefrom permanently, absenting himself from his organization on 25 August 1956, and remaining absent in desertion until he was apprehended on or about 1 March 1957.  He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for 1 year.  The sentence was adjudged on 18 April 1957.

5.  On 29 April 1957, the applicant’s sentence was approved, but the execution of that portion thereof adjudging a dishonorable discharge was suspended until the applicant’s release from confinement or until completion of appellate review, whichever was the later date.  The applicant’s record of trial was forwarded to The Judge Advocate General of the Army for review by a board of review.  Pending completion of the appellate review, the applicant was confined in the United States Army Branch Disciplinary Barracks, New Cumberland, Pennsylvania.

6.  On 19 June 1957, a Board of Review affirmed the findings and sentence.

7.  On 8 October 1957, the applicant petitioned the United States Court of Military Appeals for grant of review, and it was granted on the propriety of the law officer’s instruction concerning the desertion charge about the length of the applicant’s absence.

8.  In its opinion, the United States Court of Military Appeals held that the conviction of desertion must be set aside because instructional error was committed by the law officer regarding the inference to be drawn from the length of the applicant’s absence, citing United States v. Cothern, 8 USCMA 158, 23 CMR 382, and United States v. Soccio, 8 USCMA 477, 24 CMR 287.  Accordingly, the Court reversed the original decision and returned the record of trial for rehearing on the desertion charge or for approval of the lesser included offense of absence without leave, and reassessment of the sentence.  

9.  After further consideration of the applicant’s case, the Board of Review approved only so much of Charge II (Desertion) that found the applicant absented himself without authority from his organization.  The Board of Review determined that the sentence was correct in law and fact.  However, reassessing the sentence, the Board of Review further determined that on the basis of the entire record, that only so much of the sentence as provided for a bad conduct discharge (suspended), total forfeitures, and confinement at hard labor for
10 months was appropriate and should be approved.  The findings and sentence as modified were then affirmed.

10.  Headquarters, Fort Leavenworth, Kansas General Court-Martial Order Number 73, dated 10 February 1958, shows that only so much of the applicant’s sentence as provided for a bad conduct discharge (suspended until the applicant’s release from confinement or completion of appellate review, whichever was the later date), a forfeiture of all pay and allowance becoming due on and after the date of the convening authority’s action, and confinement at hard labor for 10 months, was affirmed, and would be duly executed.  

11.  On 10 February 1958, the applicant was discharged accordingly.  His Certification of Military Service shows that his service in the Regular Army was terminated by a bad conduct discharge on 10 February 1958.

12.  In a self-authored letter, the applicant essentially stated that after his brother joined the Army, his brother lost an eye at Fort Sill, Oklahoma, and was in a coma.  He also states, in effect, that he left his unit at Fort Carson, Colorado without authorization because his company commander would not grant him time to go see his brother.   

13.  The applicant provided no evidence which shows that he had any medical condition which caused him to be absent without leave.

14.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

15.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.

16.  Paragraph 3-7 also 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be changed to either a medical discharge or general discharge.

2.  The applicant’s contention that he should receive a medical discharge or a general discharge was not supported by the available evidence.  

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.

4.  The applicant’s trial by general court-martial was warranted by the gravity of the serious offense with which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

5.  The applicant's entire record of service was considered; however, the fact that the applicant went absent without leave on two occasions, and his trial by general court-martial and subsequent bad conduct discharge, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

6.  After a thorough review of the available records, the Board found no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge.  In view of the foregoing, there is no basis for granting the applicant's request.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 February 1958; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
9 February 1961.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that 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

___LS___  ___JR___  ___SF __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____ Linda Simmons_______
          CHAIRPERSON




INDEX

CASE ID
AR20060012371
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19580210
DISCHARGE AUTHORITY
GCMO73, 10 FEB 58 
DISCHARGE REASON
CONVICTION BY GCM
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.6800.0000
2.
144.9225.0000
3.

4.

5.

6.