IN THE CASE OF:	  

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100009647 


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 dishonorable discharge be upgraded to an honorable discharge.

2.  In an affidavit to a representative of the American Legion, the applicant states he was convicted by a general court-martial of desertion and larceny.  He now states his discharge should be upgraded based on his combat service and posttraumatic stress disorder.  He states he received a Bronze Star Medal with "V" Device and other awards for his combat service.  In 1953, he states he received a letter from his wife who said she was leaving him.  He requested leave on two separate occasions but it was denied.  Stealing money and clothing, he left his unit to see his wife.  He states he was trying to save his marriage.  At the time, he says he was stressed and made a few poor decisions.  Prior to this incident, he states he served proudly and with honor. 

3.  The applicant provided a personal affidavit 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 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 to conduct a fair and impartial review of this case.  The applicant's record of court-martial is available for review.  However, there is no DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) available for review by the Board.  

3.  Records maintained at the National Archives and Records Administration Center show the applicant enlisted in the Regular Army on 26 January 1951.   Court-martial documents show his enlistment period was for 3 years.  The applicant is entitled to wear the Korean Service Medal with one bronze star, the Combat Medical Badge, the Parachutist Badge, the United Nations Service Medal, and the Army of Occupation Medal with Japan Clasp.

4.  The applicant's records are devoid of documents showing acts of valor or significant achievements such as a Bronze Star Medal with "V" Device for valor.

5.  The applicant's disciplinary history includes three convictions other than the one under consideration:  one summary court-martial conviction for being absent without leave (AWOL) and two special court-martial convictions for two additional periods of AWOL with one specification of larceny.

6.  On 19 February 1954, the applicant was convicted by a general court-martial of one specification of AWOL from 4 August 1953 to 9 January 1954 and for two specifications of larceny.  

7.  The sentence was adjudged on 19 February 1954.  The sentence included forfeiture of all pay and allowances, confinement to hard labor for 1 year, and a dishonorable discharge.

8.  On 4 March 1954, the convening authority approved the sentence. 

9.  On 15 March 1954, the U.S. Army Board of Review affirmed the findings of guilty and his sentence.  

10.  The sentence was ordered to be duly executed in accordance with General Court-Martial Order Number 299, dated 1 April 1954, issued by Headquarters, Fort Leavenworth, KS. 

11.  References:

	a.  Army Regulation 635-364 (Enlisted Personnel Discharge Dishonorable and Bad Conduct), then in effect, provided that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial; and that the appellate review must be completed and affirmed and the sentence ordered duly executed.

	b.  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 contends his dishonorable discharge should be upgraded to honorable based, in part, on his valorous combat service in the Republic of Korea.  He contends he stole the money and clothing then left his unit so he could go stateside to see his wife who was threatening to leave him.  

2.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  He had three previous court-martial convictions for AWOL and larceny.  This general court-martial conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized circumstances of the case.

3.  The applicant's available service records were considered.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his discharge.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if an error exists or clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted 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)                                         AR20100009647



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ABCMR Record of Proceedings (cont)                                         AR20100009647



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