IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110001642 


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 reconsideration of his earlier request for an upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states he left to attend the funeral of his grandfather.  He then found out his children were not being properly cared for.  As a result, he felt he needed to assist them.  The money he had sent home for their care was not being used for them.  He needed to find them to help.

3.  He also states he served in Korea and Japan.  He does not feel his attorney represented him because he did not say anything in his defense and he even looked the other way.  He was influenced by race.  In any case, as a result of his bad conduct discharge, he served his time at Fort Leavenworth and he now believes he should receive an honorable discharge. 

4.  The applicant provides:

* his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 31 March 1955
* a Certificate of Nomination for official membership in the American Legion
* a State of Iowa Certificate of Recognition, dated 31 August 2009

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number 7132, dated 21 March 1956. 

2.  The applicant submitted a new argument which was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's record shows he enlisted in the Regular Army on 17 March 1952 for a period of 3 years.  He held military occupational specialty 1602
(Anti-Aircraft Artillery Automatic Weapons Crewman).

4.  He departed the continental United States on 30 October 1952 and he arrived in Japan on 14 November 1952 and Korea on 16 July 1953.  He departed Korea on 24 May 1954 en route to CONUS, with an arrival date of 6 June 1954.

5.  He was awarded the National Defense Service Medal, Korea Service Medal with one bronze service star, and the United Nations Service Medal.

6.  On an unknown date in 1953, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 13 to 16 February 1953.  The disposition of this court-martial and his sentence are not contained in the available records.

7.  On 30 August 1954, he was again convicted by a summary court-martial of one specification of being AWOL from 10 to 27 July 1954.  The court sentenced him to a forfeiture of $34.00 pay and confinement for 1 month.

8.  On 22 September 1954, he departed his Fort Bliss, TX, unit on 12 days of authorized ordinary leave.  He then requested a 2-day extension because of an illness in his family.  His leave extension was granted and he was so notified; however, he did not return to his unit at the termination of his leave.  Accordingly, on 4 October 1954, he was reported in an AWOL status and on 4 November 1954, he was dropped from the rolls of the Army as a deserter.  He ultimately surrendered to military control on 12 January 1955.

9.  On 23 February 1955, he was convicted by general court-martial of one specification of AWOL from 4 October 1954 to 12 January 1955.  The court sentenced him to a bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for 1 year.
10.  On 25 February 1955, the convening authority approved the sentence, and except for that part of the sentence extending to a bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

11.  On 14 March 1955, the U.S. Army Board of Military Review affirmed the approved findings of guilty and the sentence.

12.  General Court-Martial Order Number 340, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

13.  He was discharged on 31 March 1955.  The DD Form 214 he was issued shows he was discharged in accordance with Army Regulation 615-364 (Enlisted Personnel Discharges - Dishonorable and Bad Conduct) as a result of court-martial with a bad conduct discharge.  This form further shows the applicant completed 2 years and 6 months of net active service with 181 days of time lost.

14.  He submitted a Certificate of Nomination for official membership to the American Legion and a State of Iowa Certificate of Recognition of his
75th birthday.

15.  Army Regulation 615-364, in effect at the time, set forth the basic authority for the separation of enlisted personnel with dishonorable and bad conduct discharges.  It stated, in pertinent part, that an enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the separation of enlisted personnel.  Paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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.

18.  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.

19.  The ABCMR is not empowered to grant service member’s pardons for convictions by a general or special court-martial.  Article II, Section 2 of the U.S. Constitution reserves in the President of the United States the authority to grant pardons for federal offenses, to include convictions by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that his children were not cared for and his overall family circumstances caused him to go AWOL does not provide a basis for upgrading his discharge.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.  He has not provided sufficient evidence to warrant an upgrade of his discharge as a matter of equity.

2.  His argument that his attorney did not represent him and that racial issues may have contributed to his bad conduct discharge is without merit.  He failed to provide sufficient evidence to support this contention.  While there is merit to the applicant's contention that he encountered a family illness at the time, he freely chose to go AWOL and compromised the special trust and confidence placed in a Soldier.  The applicant had the duty to support and abide by Army policies and by continuing to go AWOL, he knowingly risked a military career by engaging in continued misconduct.

3.  It appears the applicant's entire service, including his service in Korea and Japan, was taken into consideration by the general court-martial prior to rendering a decision in his case.  Based on the available evidence and the applicant's multiple infractions of discipline his service does not meet the standards of acceptable conduct and performance for an honorable or general discharge.

4.  The applicant’s record of service included two prior court-martial convictions.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of a general discharge or an honorable discharge is not warranted in this case.
5.  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 to amend the decision of the ABCMR set forth in Docket Number 7132, dated 15 May 1958.



      __________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)                                         AR20110001642



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ABCMR Record of Proceedings (cont)                                         AR20110001642



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