RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070009910 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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 an honorable discharge.

2.  The applicant states, in effect, that he served for three honorable years, with the majority of those years in combat, prior to his dishonorable discharge. 

3.  The applicant provided a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) with a separation date of 14 January 1954. 

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 to the Board 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 for the Board to conduct a fair and impartial review of this case.  

3.  This case is being considered using reconstructed records, which primarily consist of a DD Form 214 (Report of Separation from the Armed Forces of the United States-Veterans Administration Regional Office Copy) with a separation date of 14 January 1954; and the Office of The Judge Advocate General, Army Board of Review Case Number 369004, filed on 18 January 1954. 

4.  The applicant enlisted in the Regular Army and entered active duty on 29 May 1950.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 4345 (Light Vehicle Driver).  

5.  On 6 November 1953, a General Court-Martial convicted the applicant of stealing Military Payment Certificates with a value of $103.00 from a superior noncommissioned officer.  The General Court-Martial sentenced the applicant to a forfeiture of all pay and allowances, confinement at hard labor for 18 months, and a dishonorable discharge. 

6.  On 16 November 1953, the convening authority approved the sentence. 

7.  On 9 December 1953, the Department of the Army, Office of The Judge Advocate General, Washington DC, Board of Review affirmed the finding of guilty and the sentence as announced in General Court-Martial Order Number 140, dated 16 November 1953.  The applicant acknowledged in his own handwriting on 4 January 1954 that he understood he had the right to petition the Court of Military Appeals.

8.  On 14 January 1954, the applicant was discharged with a dishonorable discharge and issued a DD Form 214, which shows that he completed 3 years, 4 months, and 23 days of service, and that he lost 103 days under the Manual for Courts-Martial dated 1951.

9.  On 26 January 1954, The Judge Advocate General of the Army did not recommend clemency.  There is no record of the Army Clemency and Parole Board review and decisional documents.

10.  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.

11.  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 contends that his dishonorable discharge should be upgraded to honorable as he served honorably for 3 years and he served in combat.  The applicant's military records were not available for review due to a fire in 1973 at the National Personnel Records Center.  The source document used to review the applicant's request was a copy of the Board of Review proceedings from the Office of The Judge Advocate General, dated 18 January 1954.

2.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses 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 a dishonorable discharge.

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 did not submit any evidence in support of his request for upgrade.  The applicant’s statement that he honorably served for three years, to include a combat operations tour, was carefully considered.  However, given the seriousness of the offenses 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 upon which to support the applicant’s request for clemency to upgrade his discharge at this time.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LCB__  __PMS__  __SLP ___  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.





___Shirley L. Powell___
       CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.