IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100024223 


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 upgrade of his dishonorable discharge.

2.  He states a lifetime of remorse and self-loathing has brought him to profound moral and spiritual reformation.

3.  He provides a self-authored statement and a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 11 May 1954.

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.  Following a period of service in the Army National Guard, the applicant was inducted into the Army of the United States on 19 January 1954.  He was honorably discharged on 11 May 1954 and he enlisted in the Regular Army on 12 May 1954 for a period of 3 years.

3.  General Court-Martial Order Number 8, issued by Headquarters, The Engineer Center, U.S. Army, Fort Belvoir, VA, on 23 February 1955, shows he was found guilty of stealing $160.00 which was the property of a commissioned officer.  He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for 3 years.  The portion of the sentence pertaining to confinement was reduced to 1 year by the convening authority.  The Army Board of Review affirmed the finding and sentence on 7 March 1955.

4.  General Court-Martial Order Number 371, issued by Headquarters, Camp Gordon, GA, on 22 April 1955, shows his sentence was affirmed and ordered to be executed.

5.  On 26 July 1955, the Acting Chief, Correction Division, informed the Commandant, Branch U.S. Disciplinary Barracks, Camp Gordon, GA, that the applicant's case had been considered and that restoration to duty, release on parole, and clemency were disapproved.

6.  He was dishonorably discharged effective 13 May 1955.  He completed 1 year, 9 months, and 28 days of total net service for pay purposes.

7.  In his self-authored statement, he declares:

Ever since my regrettable moral lapse as a 20-year-old man, during which I fell to the temptation to take that which did not belong to me (a $100.00 bill left in a vacant [bachelor officers' quarters] room, with door ajar), I have continuously despaired over my covetous and immoral actions.

Now, as a 76-year-old senior citizen, I have replayed this shameful act of larceny in my mind for over 50 years.  I have done my best to raise six children to become upstanding citizens of their communities.

I have lived with the bitter sense of being a hypocrite, having disciplined my own offspring as young children, for the same kinds of petty theft that their father had once committed.

God has chastened me for my sin, and has helped to free me of my guilt, as I have since lived a deeply repentant life.  I can only hope and pray for the forgiveness and restoration of men that will finally liberate my pained conscience. 

8.  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 the ABCMR 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 evidence of record shows no basis for upgrading the applicant's dishonorable discharge.  

2.  He was charged with an offense for which a punitive discharge could be adjudged by a court-martial.  He was convicted, and his sentence included a dishonorable discharge.  The sentence was affirmed and duly executed.

3.  Though he is undoubtedly sincere in professing shame for the theft he committed more than 50 years ago, doing so does not diminish the seriousness of this offense.  His dishonorable discharge appropriately characterizes this misconduct.

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 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)                                         AR20100024223



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ABCMR Record of Proceedings (cont)                                         AR20100024223



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