RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 November 2007
	DOCKET NUMBER:  AR20070006372 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Eric Andersen

Chairperson

Mr. Donald Lewy

Member

Ms. Rea Nuppenau

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, to pardon his actions during his time spent in military service and to correct his records by upgrading his dishonorable discharge. 

2.  The applicant states, in effect, that he does not believe his record is in error; however, he believes after 53 years of trying to atone for his transgressions, that his military discharge should be upgraded to a level above dishonorable. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation or Discharge from the Armed Forces of the United States); a self-authored statement; a copy of his NA Form 13038 (Certification of Military Service); a copy of Certification of Restoration of Civil Rights from the Office of Executive Clemency, Tallahassee, Florida, dated 7 October 1994; and a letter from Monroe County, Florida Veterans Services. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records are not available 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.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant's reconstructed military records show that he entered active duty on 2 August 1951.  There is no military occupational specialty recorded on his DD Form 214.  However, item 30 (Service Schools or Colleges, College Training, Courses and/or Post Grad. Courses Successfully Completed) of his  
DD Form 214 shows that he attended the Infantryman School at Fort Benning, Georgia during the period 17 December 1951 to 4 February 1952 and attended the Basic Airborne Course.

4.  His reconstructed military records show that he was convicted and sentenced by a general court-martial as recorded by General Court-Martial Order (GOMO) 602, Headquarters, Camp Kilmer dated 9 October 1953; and GOMO 1261, Headquarters Branch, United States Disciplinary Barracks, New Cumberland, Pennsylvania dated 29 December 1953.  It also shows he had 792 days lost time due to being absent without leave (AWOL) and desertion.

5.  His certification of Military Service shows that he served on active duty from  
2 August 1951 to 28 November 1954.  His discharge was characterized as dishonorable.

6.  In the applicant's statement that was submitted with his request, he said he was court-martialed back in June 1952 and sentenced to 2 years of hard labor with a dishonorable discharge.  It has been weighting on his heart and mind for the past 52 years and he is truly sorry.  He stated he can not do anything about the past but he can do something about his future.  When he joined the military service he was wild, insecure, drank a lot, and did not care much about anyone or anything.  As he got older his life has changed and he has been sober for over 42 years.  He stated, in effect, he has started a family and his wife has graced his life for the past 25 years.  He is now a member of Key Largo Baptist Church where he started his own ministry and is also teaching martial arts (karate) for self-discipline and self-confidence.  He has been growing in his community and is living a blessed life, but he is really hurting inside for what he did in the past, so he is asking for forgiveness and help for the future by granting an upgrade to his discharge.

7.  The Certification of Restoration of Civil Rights from the Office of Executive Clemency, Tallahassee, Florida shows that the applicant was granted restoration of civil rights in the State of Florida for any and all felony convictions in any state other than Florida, or in any United States Court or military court for which this person has been duly discharged from imprisonment and/or parole or probation, and for which this person has not been heretofore granted clemency.

8.  The letter from Monroe County, Florida Veterans Services, elaborated on the fact that the applicant has been involved in numerous noteworthy causes in the community in the State of Florida.  The applicant was 18 years old when he deserted the Army and is now 72 years old.  In this letter it is stated that the applicant requests that his inability to control his drinking, his youth, and his record of accomplishments over the past 52 years be considered.

9.  Army Regulation 615-364 (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.

10.  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 applicant requests that the Board pardon his actions during his military service and upgrade his dishonorable discharge.

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.  Without evidence to the contrary, it must be presumed that his 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 applicant's post-service achievements and conduct are noted.  However, the applicant’s accomplishments since discharge are not sufficient to override his conviction for desertion.  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.

4.  The Certification of Restoration of Civil Rights from the Office of Executive Clemency, Tallahassee, Florida that the applicant submitted was considered.  However, his restoration only applies to the State of Florida and has no affect outside the boundaries of the State.  Also, the letter from Monroe County, Florida Veterans Services was considered.  However, the issues cited in the letter are not sufficiently mitigating to warrant relief.

5.  His request 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

__EA  ___  __DL ___  __RN ___  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.




_____  Eric Andersen_________
          CHAIRPERSON




INDEX

CASE ID
AR20070006372
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071120
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.
110.00
2.

3.

4.

5.

6.