IN THE CASE OF:
BOARD DATE: 06 April 2010
DOCKET NUMBER: AR20090016748
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 that his General Court-Martial (GCM) be removed from his records.
2. The applicant states that he was restored to active duty after completing 8 weeks of training. The applicant adds that he has not been in any trouble in over 53 years.
3. The applicant provides excerpts from his military records and statements from a county judge executive, a pastor, and a Masonic Lodge Deputy Grand Master.
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 applicants 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 applicants 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 show that he enlisted in the Regular Army on 28 October 1954 and was awarded military occupational specialty (MOS) 612.10 (construction machine operator).
3. On 14 July 1955, the applicant was convicted by a GCM pursuant to his pleas, for acting jointly and in pursuance of a common intent, by means of force and violence, stealing from an individual a military payment certificate of a value of about $12.00; and for being in an off-limits area. The applicant was sentenced to a bad conduct discharge (BCD), forfeiture of all pay and allowances, and confinement at hard labor for 1 year.
4. The convening authority approved the sentence but suspended the execution of the BCD.
5. On 16 August 1955, the Board of Review, United States Army, affirmed the finding of guilty and sentence of the applicant's court-martial. The applicant waived consideration of his case by the United States Court of Military Appeals.
6. On 7 September 1955, the convening authority executed the applicant's court-martial's sentence with the exception of the BCD.
7. On 23 November 1955, the applicant requested restoration to duty.
8. The applicant was then placed in a rehabilitation training center. On 27 April 1956 the applicant was restored to a duty status.
9. On 8 September 1956, the applicant was convicted by a summary court-martial (SCM) for being absent without leave (AWOL) from 14 to 17 August 1956. He was sentenced to confinement at hard labor for 1 month and a forfeiture of $45.00 for 1 month.
10. On 1 October 1958, the applicant was honorably released from active duty at the expiration of his term of service. He had 3 years creditable service and 339 days of lost time.
11. Army Regulation 640-10 (Individual Military Personnel Records), Table 4-1, then in effect, describes what forms and documents are to be filed in the Official Military Personnel File (OMPF) and where they are to be filed. This regulation specifies court-martial orders are only filed on the performance portion of the OMPF if there is a finding of guilty of at least one specification. If all the approved findings are not guilty, the court-martial order is to be filed on the restricted portion of the OMPF.
DISCUSSION AND CONCLUSIONS:
1. For historical purposes, the Army has an interest in maintaining the accuracy of its records. The information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.
2. In the absence of a showing of material error or injustice, those records should not be changed.
3. In the applicant's case the records reflect the applicant's two courts-martial convictions and his restoration to duty after retraining.
4. While the applicant's post-service accomplishments are commendable, those accomplishments are insufficient as a basis for compromising the integrity of the Army's records.
5. In view of the forgoing, there is no basis for granting the applicant's request.
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) AR20090016748
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ABCMR Record of Proceedings (cont) AR20090016748
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