IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080006639 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his record of conviction by a general court-martial be expunged from his records.

2.  The applicant states that he was originally found guilty in the unfortunate death of a civilian pedestrian in a motor vehicle accident in Germany.  The guilty verdict was subsequently overturned during the appeal process and expunged from his record.  Because of the occupation of Germany and the subsequent political situation in the area at that time, he was initially convicted and sent back to the States.  After an appeal, due to the circumstances surrounding the accident he was released, was honorably discharged, and was given back pay.  However, after inquiring into his service record earlier this year, he discovered that his status had never been changed.  His discharge had not been upgraded to honorable and the court-martial conviction continues to be a part of his record. 

3.  The applicant provides a copy of his Honorable Discharge Certificate and a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States).

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 enlisted in the Regular Army on 6 October 1948 for 2 years.  He was later involuntarily extended for 1 year (due to the Korean War).

3.  On 15 January 1951, the applicant was convicted by a summary court-martial of violating a lawful regulation by appearing on the streets of Frankfurt, Germany, after midnight.  His sentence was to forfeit $17.00 pay per month for one month.

4.  On 25 July 1951, the applicant was convicted, contrary to his pleas, by a general court-martial of one specification of vehicular manslaughter and of one specification of operating a motor vehicle in a negligent and reckless manner, causing injuries to another individual.  He was sentenced to be discharged with a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for one year.  

5.  On 6 August 1951, the convening authority approved the sentence with application of the forfeitures deferred until the sentence was ordered into execution.  

6.  On 19 October 1951, the U.S. Army Board of Review affirmed the findings of guilty and the sentence.

7.  Headquarters, Second Army, Office of the Commanding General, Fort George G. Meade, MD, General Court-Martial Orders Number 161, dated 29 December 1951, noted that the portion of the applicant’s sentence, affirmed by the Board of Review, adjudging a bad conduct discharge was suspended until the applicant’s release from confinement.

8.  On 8 November 1951, the applicant indicated that he would like to be restored (to active duty) because he would have liked to leave the military service with a clean record.

9.  On 8 November 1951, the U.S. Disciplinary Barracks branch Classification Board at New Cumberland, PA, recommended the applicant be restored to active duty.  Clemency was not recommended as the sentence was considered appropriate for the offense committed.  Parole was recommended in the event restoration was denied.

10.  On 2 January 1952, in a memorandum for the Secretary of the Army, the Chief, Correction Branch, noted that the applicant was in the status of an unsentenced prisoner.  The entire institutional staff had recommended that he be restored.  The Chief, Correction Branch, recommended that the applicant’s assignment to the Military Training Company at Fort Leavenworth, KS, be approved as an exception to the Department of the Army policy of not restoring to duty persons convicted of a felony.

11.  On 1 January 1952, The Adjutant General, by order of the Secretary of the Army, authorized the applicant’s restoration to duty.  The unexecuted portion of his sentence was remitted.

12.  The applicant was restored to active duty and, on 9 April 1952, he was honorably discharged upon the completion of his expiration term of service after completing 3 years of creditable active service with 181 days of lost time (confinement).

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. 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 contended that he was originally found guilty by a court-martial in the unfortunate death of a civilian pedestrian in a motor vehicle accident in Germany but that the guilty verdict was subsequently overturned during the appeal process and expunged from his record.

2.  However, the available evidence of record does not support the applicant’s contention.

3.  The available evidence verifies that he was restored to active duty; however, his restoration was the result of Classification Board action, not because his conviction was overturned.  

4.  Because his sentence to a bad conduct discharge was never executed, and because when he was restored to active duty the unexecuted portion of his sentence was remitted, there was no need to “upgrade” his discharge from a bad conduct discharge.  He completed his term of service and, as his DD Form 214 and discharge certificate show, he was discharged with an honorable discharge.

5.  Because there is no evidence to show that the applicant’s conviction by general court-martial was overturned, his court-martial records are still properly filed in his records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  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.



	________xxxx___________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080006639





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ABCMR Record of Proceedings (cont)                                         AR20080006639



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