BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090006926 


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, an upgrade of his dishonorable discharge (DD).  

2.  The applicant states he has lived a good life since his discharge and that he feels he has been a good person.  

3.  The applicant provides no documentary evidence in support of his application. 

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 record shows that he enlisted in the Regular Army (RA) and he entered active duty on 22 July 1952.  He was awarded and served in military 
occupational specialty (MOS) 1745 (light weapons infantryman).
3.  The applicant's DD Form 230 (Service Record) shows he was advanced to the rank/grade of private (PV2)/E-2 on 22 November 1952 and that this was the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.  It does show that he accrued 273 days of time lost due to one period of being absent without leave (AWOL) from
5 January through 17 June 1953 and two separate periods of confinement between 18 June 1953 and 18 March 1954.

4.  Section 13 (Record of trials by court-martial) of the applicant's DD Form 230 confirms two Special Court-Martial (SPCM) convictions:

   a.  on 1 July 1953 for being AWOL from 5 January through 18 June 1953.  The resultant sentence was a forfeiture of $55.00 per month for six months; and
   
   b.  1 December 1953 for stealing a camera of a value of approximately $20.00, the property of the Wakaya Camera Shop [Osaka, Japan], on or about 25 October 1953.  The resultant sentence was confinement at hard labor for six months and forfeiture of $35.00 per month for six months.

5.  On 21 January 1954, a General Court-Martial (GCM) found the applicant guilty of violating Article 121 of the Uniform Code of Military Justice (UCMJ) by stealing military payment certificates valued at $70.00.  The resultant sentence approved by the convening authority was a DD, forfeiture of all pay and allowances, and confinement at hard labor for 1 years.  One previous conviction was considered.

6.  On 23 February 1954, the United States Army Board of Review, having found the findings of guilty and the sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such findings of guilty and sentence were thereby affirmed.

7.  On 18 March 1954, Headquarters, Central Command, GCM Order
Number 226 confirmed the applicant's sentence was affirmed pursuant to Article 66 of the UCMJ.  Therefore, the provisions of Article 71(c) of the UCMJ having been complied with, directed that the sentence be duly executed.  

8.  On 18 March 1954, the applicant was discharged under the provisions of Army Regulation 615-364 (Enlisted Personnel – Discharge – Dishonorable and Bad Conduct), by reason of court-martial, and he received a DD.  The DD Form 214 (Report of Separation from the Armed Forces of the United States) he was issued at the time shows he completed a total of 11 months and 1 day of creditable active military service and that he accrued 273 days of time lost due to AWOL and confinement.
9.  A DD Form 212-1 (Current Data for Restoration, Clemency, and Parole Review) on file shows that on 9 August 1954, the Clemency and Parole Board voted unanimously against restoration and clemency for the applicant, and on
31 August 1954, the Secretary of the Army disapproved restoration and clemency for the applicant.

10.  A letter from the Sociologist from the Ohio Penitentiary, Columbus, OH, dated 14 May 1957, requesting information on the applicant from the Army, indicates the applicant was received at that institution on 12 April 1957, to serve a sentence of 1-20 years for forgery.

11.  Army Regulation 615-364, in effect at the time, provided the policies and procedures for separating members with a DD.  It stipulated, in pertinent part, that a Soldier would be given a DD pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

12.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a, 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.

13.  Army Regulation 635-200, paragraph 3-7b, 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.

14.  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 ABCMR 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's contention that his DD should be upgraded because he has lived a good life since his discharge and feels he has been a good person was carefully considered.  However, by law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement; however, it does reveal a significant disciplinary history that includes two SPCM convictions prior to the GCM conviction that led to his DD.

3.  Further, the record confirms an appellate review of the applicant's GCM conviction and sentence was completed by the United States Army Board of Review on 23 February 1954, which found the approved findings of guilty and the sentence correct in law and fact. 

4.  In addition, in August 1954, restoration and clemency for the applicant was considered and denied on behalf of the Secretary of the Army.  Finally, the record shows the applicant was convicted of forgery in a civilian court and imprisoned in Ohio in 1957.  As a result, neither his overall record of service or post-service conduct support clemency in this case. 

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ____x___  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.



      ___________x_____________
               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)                                         AR20090006926



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ABCMR Record of Proceedings (cont)                                         AR20090006926



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