IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120006315 


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.

2.  The applicant states he has been told on numerous occasions that his records were burned in a fire; however, he still feels he is entitled to a hearing in order to plead his case before real people.

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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  His available record shows he enlisted in the Regular Army on 20 May 1953.  He held military occupational specialty 951.10 (Military Policeman).

4.  His records contain a DA Form 26 (Record of Court Martial Conviction).  This document shows Special Court-Martial Order Number 265, issued by the 60th Infantry Regiment, Fort Dix, NJ, sentenced him to confinement at hard labor for 4 months and forfeiture of $52.00 pay for 4 months for stealing two khaki shirts and an electric razor.

5.  General Court-Martial Order 13, issued by Headquarters, Fort Huachuca, AZ, dated 29 February 1956, shows he was tried and found guilty of:

* stealing a camera and two metal type belts
* willful and wrongful destruction by breaking an automobile window
* stealing 4 wheels, 4 tires, and 4 inner tubes
* stealing a wheel, tire, and inner tube, property of Mrs. Bxxxxx
* stealing a wheel, tire, and inner tube, property of another Soldier
* stealing a .22 caliber pistol

6.  He was sentenced to confinement at hard labor for 2 years, forfeiture of all pay and allowances, and a dishonorable discharge.

7.  The applicant appealed his conviction; however, on 27 June 1956, the U.S. Army Court of Military Appeals denied his petition for review.

8.  General Court-Martial Order 265, issued by Headquarters, 5th Infantry Division, Fort Ord, CA, dated 16 July 1956, shows his court-martial was affirmed and the convening authority ordered the discharge executed.

9.  He was dishonorably discharged in the rank of private on 18 July 1956.

10.  In an earlier application to the Army Discharge Review Board, he stated during his assignment to Korea he got into trouble when he and four other military policemen stole some things from a car.  He takes full responsibility for his actions.  He was court-martialed and during his incarceration he attended night school and received his high school diploma.  After his discharge he worked for the Teamsters Union for 40 years prior to retiring.  He is a member of the Elks Lodge and is ashamed of his discharge.  He feels that with all the senators, congressmen, governors, mayors, and stock brokers robbing the country he should be entitled to a second chance.  He doesn't want any health benefits or burial benefits but only wants an American Flag for his casket.  He loves his country and would be thankful for any assistance.

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 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.

12.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Paragraph 3-7b 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.

13.  Army Regulation 635-200, paragraph 3-7a, 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.

14.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested to personally appear before the Board, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance.

2.  His record reveals he committed serious crimes which rendered him triable by court-martial for offenses punishable by a bad conduct or dishonorable discharge.  The crimes culminated in his trial by general court-martial which was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  After review of the applicant’s available record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted, it is also clear that his service was not satisfactory, thus did not meet the criterion for discharge under either general or honorable conditions.  Therefore, there is no basis for a grant of clemency in the form of an upgraded discharge.

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)                                         AR20120006315





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ABCMR Record of Proceedings (cont)                                         AR20120006315



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