IN THE CASE OF:	  

		BOARD DATE:	    26 November 2013

		DOCKET NUMBER:  AR20130006603 


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 entered military service when he was 17 years old. Even though he served honorably in Korea, he received a dishonorable discharge for his behavior occurring stateside.  Counseling did not exist at the time, but he thinks his punishment should not last infinitum.  He learned a lot of good things, but he also picked up some bad habits that have plagued him for most of his life.  He takes full responsibility for his behavior, but questions whether 2 years and a dishonorable discharge should haunt him for the rest of his life.  His basic argument is that in the interest of justice, his punishment should not last a lifetime.

3.  The applicant provides:

* a letter from the National Personnel Records Centers (NPRC) with a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) and a Certification of Military Service
* a letter from the Army Review Boards Agency and his reply

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 original military records, except for a copy of the record of trial, are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the NPRC in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents from a reconstructed personnel record, the record of trial, and documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The applicant's military records show he was born on 23 December 1933.  He enlisted in the Regular Army on 27 March 1951.  At the time of his enlistment, he was 17 years and 4 months of age.

4.  On 3 September 1952, he was convicted by a general court-martial of one specification of being absent without leave (AWOL) from 13 November 1951 to on or about 1 August 1952.  He was sentenced to forfeiture of all pay and allowances, confinement at hard labor for 6 months, and a bad conduct discharge.

5.  On 9 September 1952, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence duly executed.

6.  On 27 April 1955, he was convicted by a general court-martial of one specification of being AWOL from 21 September 1954 to on about 15 April 1955. 
He was sentenced to forfeiture of all pay and allowances, confinement at hard labor for 6 months, and a dishonorable discharge.

7.  On 9 May 1955, the convening authority approved the sentence and ordered it duly executed.

8.  On 22 July 1955, the U.S. Court of Military Appeals denied his petition for an upgrade of his dishonorable discharge.

9.  Headquarters, Branch U.S. Disciplinary Barracks, New Cumberland, PA, General Court-Martial Order Number 1020, dated 8 August 1955, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the dishonorable discharge duly executed.

10.  In a letter, dated 7 November 2012, NPRC advised the applicant that his records had been badly damaged in a fire and the quality of the documents contained therein were poor.  He was provided a copy of his separation document and a Certification of Military Service for verification of his military service.

	a.  The DD Form 214 he was provided shows he was discharged as a result of a sentence by a court-martial under the provisions of Army Regulation 
615-364 (Enlisted Personnel – Discharge – Dishonorable and Bad Conduct).

	b.  The Certification of Military Service he was provided, dated 7 November 2012, shows he enlisted in the Regular Army on 27 March 1951 and was dishonorably discharged on 27 April 1955.

11.  Army Regulation 615-364, in effect at the time, set forth the authority for the separation of enlisted personnel for dishonorable and bad conduct.  The regulation stated an enlisted person would be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge.  The appellate review must be completed and the affirmed sentence ordered duly executed.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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 change a discharge due to matters which should have been raised in the appellate process, 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.  The applicant contends that his discharge should be upgraded because his punishment should not last a lifetime.  However, his records clearly show he was twice convicted by a general court-martial for lengthy periods of AWOL.  In August 1955, he was dishonorably discharged pursuant to the sentence of his general court-martial after the sentence was affirmed.

2.  His available military records and the documentation submitted with his application contain no matters upon which the Board should grant clemency and an upgrade of his dishonorable discharge.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  The characterization of his discharge accurately reflects his overall record of service.

4.  The Board is empowered to change the characterization of the discharge if clemency is determined to be appropriate.  Given the above, and after a thorough review of the applicant's available records and any evidence submitted, the Board found no cause for clemency.  The applicant's desire to have his discharge upgraded is acknowledged; however, the Board does not change the character of service due to the passage of time.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130006603



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ABCMR Record of Proceedings (cont)                                         AR20130006603



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