BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110015082 


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 correction of his record to show he received a general discharge (GD).

2.  He states he knows there was a disconnection between the court-martial records and the final review.

3.  He provides:

* a self-authored statement
* a National Archives and Records Administration (NA) Form 13038 (Certification of Military Service)
* documentation related to general court-martial proceedings against him

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 complete 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, documents remaining in a reconstructed record and documents the applicant provides are sufficient to conduct a fair and impartial review of this case.

3.  On 25 August 1950, the applicant enlisted in the Regular Army for a period of 3 years.

4.  On 29 March 1951, Headquarters, 82nd Airborne Division, Fort Bragg, NC, issued General Court-Martial Orders Number 32.  The orders show the applicant was found guilty of wrongfully and unlawfully taking and using a 2 1/2-ton truck that was the property of the United States on or about 1 February 1951.  He was sentenced to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for 1 year.

5.  The available records include a Review of the Judge Advocate showing the Division Judge Advocate reviewed the record of trial by general court-martial and found the sentence was legal based on the legally-sustained finding of guilty.  The Division Judge Advocate recommended that the portion of his sentence pertaining to dishonorable discharge be suspended until his release from confinement in view of the applicant's youth and his record of no previous convictions.

6.  On 4 April 1951, a Board of Review found the findings of guilty and the sentence to be legally sufficient.

7.  In a memorandum, dated 9 October 1951, The Adjutant General informed the Commandant, Branch U.S. Disciplinary Barracks, New Cumberland, PA, that the applicant's parole had been approved.  The memorandum shows the applicant's restoration to duty was not favorably considered, but that he could make application for restoration while on parole.  The memorandum further shows an enclosed official communication remitted the portion of his sentence pertaining to dishonorable discharge and directed the issuance of a Bad Conduct Discharge (BCD) Certificate.  Clemency was disapproved with regard to his sentence to confinement.

8.  The NA Form 13038 he provides shows he received a BCD on 9 October 1951.

9.  The available records do not show he was granted any further clemency with regard to the portion of his sentence pertaining to discharge.

10.  In a letter to an archives technician, he states he has a problem with the NA Form 13038 stating he received a BCD when his final discharge was a GD and offers his personal history.

	a.  Shortly after his release from confinement, he had a mental breakdown and was admitted to the Boston Mental Health Center.  While in the hospital, he received a visit from a gentleman who said he was from the Veterans Administration (VA).  The visit was short and pleasant.  The gentleman from the VA asked if he was treated well and if he was feeling better.  He answered yes to both questions.  The gentleman from the VA wished him luck and left.

	b.  A few months later, he received a letter from the Army stating his discharge had been changed from a BCD to a GD.  The change was due to a review of some kind, and they required nothing from him.

	c.  He is now 78 years old and still working at his job as a security guard.  In order to please his employer, all supervisors were to apply for a "class D security license."  In order to comply, he must have no outstanding warrants and a modest criminal background, if any.  The only chance he has is to find the GD, the review that made the change, or, if it can't be found, obtain a new review.

11.  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 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.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7b, provides that a GD 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.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant's conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  There is no evidence showing his BCD was upgraded to a GD after he was discharged.

4.  In view of his conviction by general court-martial, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.

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 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)                                         AR20110015082



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ABCMR Record of Proceedings (cont)                                         AR20110015082



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