BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090018985 


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 dishonorable discharge be upgraded to at least a general discharge under honorable conditions.

2.  The applicant states, in effect, that he was charged with perjury and given a dishonorable discharge because he refused to identify someone who was accused of a charge of which he had no knowledge and, in fact, did not know very well.  He contends that, due to the racism and unfair treatment of minority Soldiers during that time frame, he was not given equal treatment under military law.  He goes on to state that he still feels to this day that it was unjust for him to receive a dishonorable discharge on the belief that he could identify someone that he had no knowledge of.

3.  The applicant argues, in effect, that he did not have any prior knowledge of military law and the court system.  He states, that he would have never testified if he had known that the consequences of his actions would result in a dishonorable discharge, forfeiture of all pay, and confinement and hard labor for 1 year.
	
4.  The applicant provides a congressional inquiry packet, National Archives Form 13038 (Certification of Military Service), a self-authored letter, and a copy of his general court-martial (GCM) proceedings, dated 24 March 1953.




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 member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  A copy of the GCM proceedings which are dated 29 May 1953, a copy of a certification of military service, and a Congressional inquiry will be used to process his request.

3.  A copy of the GCM proceedings shows that on 27 February 1951 he enlisted in the Regular Army for a period of 3 years.  On 24 March 1953, he was charged under Article 131 of the Uniform Code of Military Justice for perjury before a special court-martial for another Soldier which took place on 25 February 1953.

4.  The applicant was charged with violation of Article 131, Uniform Code of Military Justice, for perjury in that on 25 February 1953 he willfully, corruptly, and contrary to such oath, testified in substance that he "was a passenger on the pass truck of the [unit name] on the night of 12 February 1953 that was traveling from Hammelburg, Germany, to [camp name].  [Accused Soldier] was not on the pass truck," which testimony was upon a material matter and which he did not then believe to be true.

5.  The applicant entered a plea of not guilty and contends he told his defense counsel he wanted to file an appeal.  He states his defense attorney did not file as he had requested.

6.  The 24 March 1953 general court-martial sentence consisted of 1 year of confinement at hard labor, total forfeiture of all pay and allowances, and a dishonorable discharge.

7.  On 13 April 1953, the convening authority approved the sentence and forwarded the record of trial to The Judge Advocate General.

8.  Stated in The Judge Advocate General review is a section on clemency in which a post-trial interview with the applicant took place and information was obtained on the following:

	a.  Civilian Background:  The applicant was 27 years old and single.  He left school after 9 years and worked as a janitor for $30.00 a week.  There was no record of any civilian criminal convictions.

	b.  Military Background:  The accused enlisted in the Army on 27 February 1951 and served for 9 months as a combat infantryman in Korea.  He began his tour of duty in his last command on 22 November 1952.  The highest rank he attained was corporal with duties as an ammunition supply specialist.  His commander rated his character and efficiency prior to the offense as satisfactory.  The applicant had only one previous conviction by a summary court-martial on 20 August 1952 for leaving his appointed place of duty without authorization.  He was sentenced to reduction to private/E-1 and a forfeiture of $50.00 pay.

	c.  Sentence:  The maximum sentence for perjury is a dishonorable discharge, total forfeitures, and confinement for 5 years.  The confinement adjudged by the court of 1 year is, therefore, not excessive and is within sentences imposed by civilian courts for the same office.  The punitive discharge should be executed regardless of whether the applicant's flagrant violation of his oath was occasioned by a desire to assist a fellow Soldier in difficulty or otherwise, such conduct by a witness before a court-martial cannot be condoned since courts-martial, like other judicial tribunals, are entitled to the whole truth from witnesses.

9.  A letter, dated 21 July 1953, from Headquarters Branch, U.S. Disciplinary Barracks, cited that the applicant did not file a petition for grant of review by the Court of Military Appeals during his authorized appeal period which expired on 16 July 1953.

10.  A copy of a letter, dated 6 October 1953, written to the Commandant, Headquarters Branch, U.S. Disciplinary Barracks, cited disapproval for restoration of duty and for clemency.

11.  The applicant was discharged on 13 December 1953 under the provisions of Army Regulation 635-200 (Personnel Separations) as a result of a court-martial.  He was issued a dishonorable discharge.  He had served 2 years and 25 days of total active service with 264 days of lost time due to confinement.
12.  Army Regulation 635-200, paragraph 3-10 (DD Form 260A, Dishonorable Discharge Certificate), in effect at that time, provided that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a GCM.  The appellate review must be completed and the affirmed sentence ordered duly executed.

13.  Army Regulation 635-200, paragraph 3-7, 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.  Title 10, U.S. Code, section 1552(f), states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was given a dishonorable discharge on the basis of perjury.  He states that the charges were brought against him because he refused to identify someone who was accused of breaking a restriction of which he had no knowledge and, in fact, did not know very well.  He states that due to the racism and unfair treatment of minority Soldiers during that time frame, he was not given equal treatment under military law.  However, there is insufficient evidence to support these claims.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable laws and regulations at that time and the dishonorable discharge appropriately characterized the misconduct for which he was convicted.  The maximum punishment for perjury under the MCM (1951) was a dishonorable discharge, forfeiture of all pay and allowances, and 5 years of confinement at hard labor. The maximum punishment for perjury is the same under the MCM (2008).  The evidence of record shows the applicant received a lesser punishment of 1 year of confinement at hard labor, forfeiture of all pay and allowances, and a dishonorable discharge.

3.  The applicant's available record of service and the GCM proceedings were considered in this case.  Prior to the court-martial, the applicant was defined as a satisfactory Soldier.  He had one prior offense for leaving his appointed place of duty, which was punished by summary court-martial.  The proof that racial discrimination took place at any point during his trial by court-martial or that he was not given a fair trial is not apparent in the evidence provided.

4.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  It is concluded that based on the offenses for which he was convicted and the fact that he served a lesser sentence than the maximum allowed under the MCM at that time, clemency would be inappropriate 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)                                         AR20090018985



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ABCMR Record of Proceedings (cont)                                         AR20090018985



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