IN THE CASE OF:
BOARD DATE: 2 January 2014
DOCKET NUMBER: AR20130006711
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, in effect, that his general court-martial conviction be overturned.
2. The applicant states:
* his felony charge for larceny should be removed from his military records because the decision made on 16 September 1998 stated all Department of the Army records related to his case would be corrected
* he wants to clear his record
3. The applicant provides a copy of the Department of the Army letter, dated
16 September 1998.
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. However, information was obtained from reconstructed personnel records and the records provided by the applicant.
3. Information obtained from ABCMR proceedings (Docket Number AC97-10304) shows:
a. he enlisted in the Regular Army on 18 July 1950.
b. he arrived in Korea on 27 January 1951. He received the Combat Infantryman Badge and he was evacuated from Korea for anxiety neurosis.
c. on 10 September 1951, he was convicted by a summary court-martial of failure to repair and having an unclean uniform.
4. On 12 January 1952, he was convicted by a general court-martial of stealing 11 blankets. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for 2 years. On 16 January 1952, the convening authority approved the sentence.
5. On 29 February 1952, the Office of The Judge Advocate General, Board of Review, affirmed the findings of guilty and sentence.
6. On 9 April 1952, the convening authority ordered the dishonorable discharge executed.
7. His DD Form 214 (Report of Separation from the Armed Forces of the United States) is not available.
8. On 16 September 1998, the ABCMR upgraded his dishonorable discharge to a general discharge. The ABCMR recommendation states that all of the Department of the Army records related to this case would be corrected:
a. by showing that clemency was warranted and that the individual concerned was discharged on 16 January 1952 with a general discharge, under honorable conditions; and
b. by issuing to him a general discharge certificate, dated 16 January 1952, in lieu of the dishonorable discharge certificate of the same date now held by him.
9. He was issued a certificate in lieu of lost or destroyed discharge on 9 March 1999 which shows he was discharged under honorable conditions (general) on 16 January 1952.
10. 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. The applicant contends his felony charge for larceny should be removed from his military records because the ABCMR decision made on 16 September 1998 stated all Department of the Army records related to his case would be corrected. However, evidence shows on 16 September 1998, as a matter of clemency, the ABCMR corrected his military records to show he was discharged on 16 January 1952 with a general discharge.
2. By law, this Board cannot disturb the finality of a court-martial conviction, and the applicant has not established a basis for granting clemency. Therefore, there is no basis for granting the applicants 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 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) AR20130006711
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130006711
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140007871
His conviction and discharge were effected in accordance with applicable law and regulations and the type of discharge appropriately characterizes the misconduct for which the applicant was convicted. His record of service included three summary court-martial convictions, two special court-martial convictions, and 404 days of lost time. Therefore, his record of service is insufficiently meritorious to warrant an upgraded discharge.
ARMY | BCMR | CY2004 | 20040006627C070208
The applicant’s military records are not available to the Board for review. There is no evidence and the applicant has not provided evidence that shows the FSM's superiors made it hard on him because he was black or documentation that shows white Soldiers refused to take orders from him. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.
ARMY | BCMR | CY2008 | 20080006639
The applicant requests, in effect, that his record of conviction by a general court-martial be expunged from his records. After an appeal, due to the circumstances surrounding the accident he was released, was honorably discharged, and was given back pay. Because there is no evidence to show that the applicants conviction by general court-martial was overturned, his court-martial records are still properly filed in his records.
ARMY | BCMR | CY2007 | 20070006372
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 November 2007 DOCKET NUMBER: AR20070006372 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant's military records are not available for review. The applicant requests that the Board pardon his actions during his military service and upgrade his dishonorable discharge.
ARMY | BCMR | CY2013 | 20130006603
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. 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. His available military records and the documentation submitted with his application contain no matters upon which the Board should grant...
ARMY | BCMR | CY2010 | 20100012339
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. Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency Case Management Division as outlined by the Board in...
ARMY | BCMR | CY2010 | 20100027641
The applicant's military records are not available for review. Army Regulation 600-8-22 states the Republic of Korea War Service Medal is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953. 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.
ARMY | BCMR | CY2004 | 20040007163C070208
The applicant, as the wife of the deceased former service member (FSM), requests, in effect, that clemency in the form of an upgrade to his discharge be granted. When the FSM returned, he was discharged with a dishonorable discharge. The FSM’s military records are not available to the Board for review.
ARMY | BCMR | CY2003 | 2003088676C070403
This certificate shows the same information; the applicant enlisted in the Regular Army on 9 February 1950 and was discharged with an Bad Conduct Discharge on 10 June 1952 in the rank of Private. Army Regulation 615-364, then in effect, provided the policy for discharge of enlisted personnel pursuant only to approved sentences of a general court-martial empowered to impose a dishonorable discharge. After a thorough review of the applicant’s record, the Board found no cause for clemency and...
ARMY | BCMR | CY2006 | 20060007705
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 February 2007 DOCKET NUMBER: AR20060007705 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted. Therefore, the applicant's discharge...