IN THE CASE OF:	

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090014345 


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 his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).  

2.  The applicant states he has lived an honorable life since his discharge and that he was a good Soldier prior to making a dumb mistake at age 18 that led to his discharge.  He states he is now 68 and would like to go to his grave knowing his country loves him as much as he loves it. 

3.  The applicant further states he raised a family of four children and the three remaining children all have honorable jobs.  He states they are all law abiding citizens.  He further states he retired after 50 years of employment and his health and mind are not what they used to be and he wants to address this now while he can.  

4.  The applicant claims he has spent the last five Memorial Days at the local veterans' homes assisting those honorable men.  He states he visits the veterans' homes on a weekly basis and every time he looks at them, he feels ashamed of himself.  He asks for help in correcting the wrong he did.  

5.  The applicant provides a self-authored statement and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 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 applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for a fair and impartial review of this case.  This case is being considered using reconstructed records that primarily consist of the applicant’s DD Form 214 and the Record of Trial.  

3.  The applicant's DD Form 214 shows he enlisted in the Regular Army and entered active duty on 17 June 1958.  It further shows he held and served 
in military occupational specialty (MOS) 951.10 (Military Police).  

4.  On 19 January 1961, while serving as a private first class/E-3 at Fort Hood, Texas, a court martial charge was preferred against the applicant for three specifications of violating Article 134 of the Uniform Code of Military Justice (UCMJ) by communicating indecent language to three women.  

5.  On 9 February 1961, a General Court-Martial (GCM) found the applicant guilty to the charge and all specifications.  The resulting sentence was a BCD and a forfeiture of all pay and allowances.  

6.  On 21 February 1961, the Staff Judge Advocate (SJA) completed a review of the applicant's court-martial.  In paragraph 6 (Clemency) of his review, the SJA commented that the applicant's military record showed he performed various duties of a military policeman and had served 12 months in Korea prior to his arrival at Fort Hood.  He documented no acts of valor or significant achievement. 

7.  The SJA review further noted that while the sentence was correct in law and fact, the forfeitures should be reduced since no confinement was adjudged.  He further noted the applicant had indicated he would rather stay in the Army and did not want a punitive discharge, and that he would make no such phone calls in the future; however, in view of the offenses and the testimony of the psychiatrist to the effect the applicant would not be of future benefit to the service, no further clemency was warranted.  

8.  On 23 February 1961, in Headquarters, Fort Hood GCM Order Number 6, the convening authority approved only so much of the sentence that provided for a BCD.  

9.  On 7 March 1961, the Board of Review, United States Army affirmed the findings of guilty and the sentence in the applicant's case.

10.  Headquarters, Fort Hood GCM Order Number 8, dated 15 March 1961, directed, Article 71(c ) having been complied with, the sentence be duly executed.  On 22 March 1961, the applicant was discharged with a BCD accordingly.  

11.  The DD Form 214 issued to the applicant, on 22 March 1961, shows he was discharged under the provisions of Army Regulation 635-204, as a result of court-martial after completing 2 years, 9 months, and 6 days of credible active military service.  It further shows he held the rank of recruit/E-1 at the time and that he received a BCD. 

12.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he earned the following awards during his tenure on active duty:  

* Expert Marksmanship Qualification Badge with Carbine Bar
* Marksman Marksmanship Qualification Badge with Pistol Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

13.  Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel and provided for separating members with a dishonorable discharge or BCD pursuant to an approved sentence of a GCM.  It stated that an enlisted person will be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a bad-conduct discharge and  would be accomplished only after the completion of the appellate process, and affirmation of the court-martial findings and sentence.

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 contentions that his BCD should be upgraded to an HD based on his post-service conduct and the contributions he makes to veterans have been carefully considered.  However, there is insufficient evidence to support granting the requested relief.  

2.  In this case, the evidence 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.  Given the applicant's overall record of undistinguished service and the gravity of the offenses for which he was convicted, his post service good conduct alone does not support clemency in this case.  

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)                                         AR20090014345



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ABCMR Record of Proceedings (cont)                                         AR20090014345



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