IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100012339 


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, that his undesirable discharge be upgraded to a discharge that will allow him to be buried in a Department of Veterans Affairs National Cemetery.

2.  The applicant states that he was court-martialed and found guilty of bad conduct and cowardice and he has lived with this injustice all of his life and would like to rectify it before he dies.  He goes on to state that he was given an undesirable discharge and he is seeking justice to upgrade his discharge.

3.  The applicant provides:

* a partial copy of his record of trial by court-martial
* a copy of a three-page letter of what he defines as the testimony he should have been allowed to give in his own defense
* a copy of his Undesirable Discharge Certificate

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 the applicant's records were lost or destroyed in that fire.  Additionally, the original record of trial could not be located.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant was serving in the Alabama Army National Guard when he entered active duty on 16 January 1951 as a light weapons infantryman.  He was transferred to Korea for assignment to Company G, 9th Infantry Regiment, 2d Infantry Division.

4.  On 8 December 1951, a general court-martial convened at Kapyong, South Korea, to try the applicant (serving as a private first class) on charges of cowardly conduct in the presence of the enemy on 16 September 1951 in that he wrongfully failed to join the forward elements of his company and for willfully disobeying a lawful order from a superior noncommissioned officer to rejoin his unit.  The applicant was represented by an officer of the Judge Advocate General's Corps.

5.  Page 17 of the partial record of trial provided by the applicant reflects that the applicant, after having been advised of his rights, elected to remain silent and not to testify in his own behalf.

6.  On 8 December 1951, the applicant was found not guilty of charge I (cowardly conduct) and guilty of charge II (willful disobedience of a lawful order from a noncommissioned officer).

7.  While the complete record of trial is not available, based on the available evidence it appears he was sentenced to confinement at hard labor, reduction to pay grade E-1, and a dishonorable discharge.  He was transferred to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas.

8.  On 22 April 1952, he was discharged pursuant to his court-martial conviction and General Court-Martial Order Number 377 issued by Headquarters, Fort Leavenworth, Kansas.  He had 8 months and 24 days of active service during his current period of service and 196 days of lost time due to imprisonment.  He had 1 month and 27 days of foreign service.  He was issued a Dishonorable Discharge Certificate (DD Form 260A).

9.  On 20 October 1952, the Adjutant General of the Army notified the applicant that an undesirable discharge was substituted for his dishonorable discharge by order of the Secretary of the Army.  Accordingly, the applicant was issued an Undesirable Discharge Certificate (DD Form 258A), dated 22 April 1952.  However, there is no evidence to show he was ever issued a DD Form 214 to show he was furnished an undesirable discharge under Secretarial Authority instead of a dishonorable discharge.

10.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.  In the absence of evidence to the contrary, it appears that trial by court-martial was warranted by the gravity of the offenses charged and the circumstances at the time (war).  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge, as changed by the Secretary of the Army, appropriately characterizes the misconduct for which the applicant was convicted.

2.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the evidence in the Record of Trial, the fact that the applicant offered no testimony in his defense at the time, and the fact that his misconduct occurred during a time of war.  The type of discharge directed and the reasons appear to be appropriate considering the available facts of the case.

3.  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 failed to submit evidence that would satisfy this requirement.

4.  The evidence shows the applicant's records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency Case Management Division as outlined by the Board in paragraph 2 of the Board Determination/Recommendation section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ___X_____  DENY APPLICATION 

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the Army Review Boards Agency Case Management Division administratively correct the records of the individual concerned by issuing him a new DD Form 214 to show he was discharged with an Undesirable Discharge Certificate under Secretarial Authority to replace the DD Form 214 showing a dishonorable discharge now held by him.



      ____________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)                                         AR20100012339



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012339



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1