BOARD DATE:	  16 October 2012

		DOCKET NUMBER:  AR20120006506 


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 that his bad conduct discharge (BCD) be upgraded to a more favorable discharge.

2.  The applicant states that it has been 45 years since he received his BCD and he has not talked or written to anyone about upgrading his discharge.  He goes on to state that he knows he had no excuse at the time he went absent without leave (AWOL) but he came from a poor Indian family, had little education, and did not understand how to lead the life of a Soldier.  He continues by stating that he joined the Army to help his family and sent allotments home.  He also states that after he completed his first tour in Korea he volunteered to go back for another tour.  He also states that at the time he did not realize that going AWOL was wrong but he now knows it because he has had to live with his BCD.

3.  The applicant provides a two-page letter explaining his application and three third-party character references in support of his application. 

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 for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed the applicant's records were lost or destroyed in that fire.  However, the documents provided by the applicant and those contained in a reconstructed record are sufficient to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army in Sioux Falls, South Dakota on    26 January 1951 for a period of 3 years.  He completed his training and departed for Japan on 27 September 1951.   

4.  He was transferred to Korea on 25 October 1951 and served there until        11 December 1951 when he was transferred back to Japan.  He was promoted to the rank of corporal on 3 March 1952 and on 31 October 1952 he was transferred back to Korea and remained there until 8 June 1953 when he was transferred to Camp Atterbury, Indiana.  He was promoted to the rank of sergeant on 29 October 1953.  He reenlisted on 13 November 1953 for a period of 6 years.

5.  On 23 November 1953, he was transferred to Fort Carson, Colorado for assignment to an artillery battery.

6.  On 27 March 1954, he was convicted by a summary court-martial of being AWOL from 22 February to 3 March 1954.  He was sentenced a forfeiture of $80.00 pay and reduction to the rank of corporal.

7.  The applicant went AWOL on 16 June 1954 and remained absent in a desertion status until he was apprehended on 28 October 1954.

8.  On 7 December 1954, he was convicted by a general court-martial of being AWOL from 16 June to 28 October 1954 and he was sentenced to be discharged with a BCD.

9.  While awaiting his appellate review the applicant again went AWOL from 
11 to 29 January 1955 and from 21 July to 3 August 1955.

10.  On 20 August 1955, he was discharged pursuant to a duly affirmed court-martial conviction.  He was credited with 3 years, 5 months, and 22 days of active service and he had 393 days of lost time due to being AWOL and in confinement.  

11.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

12.  Army Regulation 635-200, 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

2.  The applicant’s overall record of service and his letters of support were considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious and repeated nature of his offenses and his rank at the time he began his series of absences.

3.  The applicant’s court-martial was legally sufficient to support the findings and sentence as approved by the convening authority.

4.  Accordingly, his sentence was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.
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)                                         AR20120006506



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ABCMR Record of Proceedings (cont)                                         AR20120006506



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