IN THE CASE OF:
BOARD DATE: 21 August 2012
DOCKET NUMBER: AR20120004147
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 an upgrade of his dishonorable discharge (DD) to an honorable discharge (HD).
2. The applicant states he was 18 years old and foolish and asks that the Board please upgrade his DD to an HD.
3. The applicant provides no additional evidence.
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 record is not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973. It is believed that the applicant's records were lost or destroyed in that fire. This case is being considered using reconstructed records maintained at the NPRC which include the Board of Review court-martial appellate decision, clemency review packets, and an National Archives and Records Administration (NA) Form 13038 (Certification of Military Service).
3. The NA Form 13038 shows the applicant was inducted into the Army of the United States on 22 November 1943.
4. On 16 February 1946, a general court-martial (GCM) found the applicant guilty of violating the following Articles of War by committing the offenses indicated:
a. Article 92, by willfully, deliberately, feloniously, unlawfully, and with premeditation, with malice aforethought, kill another Soldier; and
b. Article 93, by assaulting another Soldier with the intent to do bodily harm by shooting him in the leg with a dangerous weapon.
5. The GCM sentence imposed and approved by the convening authority in War Department GCM Order Number 293, dated 3 October 1946, was that the applicant be hanged by the neck until dead.
6. He was dishonorably discharged in the rank of private on 9 September 1946.
7. On 7 August 1948, the Judge Advocate General (TJAG) Board of Review (BOR) found the court was legally constituted and had jurisdiction over the accused of the offenses. No errors injuriously affecting the substantial rights of the accused were committed during the trial. The BOR opined the record of trial was legally sufficient to support the findings and the sentence and to warrant confirmation of the sentence. A sentence of either death or imprisonment for life was mandatory upon conviction of violation of Article of War 92.
8. On 27 August 1946, TJAG transmitted the record of trial and opinion of the BOR to the President of the United States. TJAG concurred with the BOR findings and conclusions and recommended the sentence of the accused be commuted to a DD, total forfeiture of pay and allowances, and confinement at hard labor for the term of the applicant's natural life.
9. On 9 September 1946, the President of the United States confirmed the GCM sentence but commuted it to a DD, forfeiture of all pay and allowances, and confinement at hard labor for the term of the natural life of the accused.
10. The Secretary of the Army granted the applicant clemency in actions in 1963, 1964, and 1965 which ultimately led to a remission of his confinement sentence in excess of 20 years and 6 months.
11. Army policy in effect at the time codified in the Articles of War, provided for preliminary investigations, defense counsel, the presence of a legally trained member at every court-martial, automatic appellate review of convictions, and the higher review of all sentences of death, dismissal, or DD.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to upgrade his DD has been carefully considered. However, there is insufficient evidence to support this claim.
2. The available evidence reveals no error or injustice related to the applicant's court-martial conviction that resulted in his DD. It confirms his case was properly considered through the appellate process and the DD portion of the sentence was upheld throughout this process, including review by TJAG and the President of the United States. Further, the evidence shows the applicant has benefited from several clemency reviews that ultimately remitted his prison sentence from life to 20 years and 6 months.
3. In view of the available evidence, there is an insufficient basis to support granting further clemency 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 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.
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