IN THE CASE OF: 

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130016751 


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 his bad conduct discharge be upgraded to an honorable discharge. 

2.  The applicant states it was a time when it was an issue of prejudice.  He did not receive fair treatment as an African-American.  He was not treated as fairly as the others.  He does not understand why he wasn't given an honorable discharge when he was entitled to one just as people of a different race.

3.  The applicant provides:

* five personal references
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 5 October 1960

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.  On 10 February 1959, he was inducted into the Army of the United States.  On 27 June 1959, he was assigned to Headquarters and Headquarters Company, 2nd Airborne Brigade, 501st Infantry at Fort Bragg, NC.

3.  He went absent without leave (AWOL) for 1 day on 8 June 1959.  There is no disposition for this period of AWOL in his Military Personnel Records Jacket (MPRJ).

4.  He went AWOL on 15 November 1959 and surrendered to his unit on 
19 November 1959.

5.  On 25 November 1959, he was tried before a summary court-martial and found guilty of being AWOL from on or about 15 November 1959 to on or about 19 November 1959.  His sentence consisted of reduction to recruit/pay grade 
E-1, confinement for 30 days, and forfeiture of $55.00.

6.  He went AWOL on 4 January 1960 and surrendered to his unit on 5 January 1960.  He went AWOL again on 11 January 1960 and surrendered to his unit on 16 January 1960.  There is no disposition for these periods of AWOL in his MPRJ.

7.  He went AWOL on 23 January 1960 and was apprehended by military authorities on 8 April 1960.  He went AWOL again on 11 April 1960 and was apprehended by military authorities on 31 May 1960.

8.  On 12 July 1960, he was tried before a general court-martial.  He pled guilty and was found guilty of being:

* AWOL from on or about 23 January 1960 to on or about 8 April 1960
* AWOL from on or about 11 April 1960 to on or about 31 May 1960

His sentence consisted of forfeiture of all pay and allowances, confinement for 
1 year, reduction to recruit, and a bad conduct discharge.  The convening authority approved the sentence on 20 July 1960.

9.  On 5 August 1960, the Board of Review, U.S. Army affirmed only so much of the sentence that provided for the Bad Conduct Discharge, total forfeitures, confinement  for 9 months, and reduction to the grade of Recruit E-1.

10.  Headquarters, Fort Leavenworth, KS General Court-Martial Order Number 595, dated 13 September 1960, ordered the applicant's discharge to be executed.

11.  On 5 October 1960, he was discharged.  He completed 11 months and 
7 days of creditable service that was characterized as bad conduct.  He had 
265 days of time lost.

12.  He submitted five identical handwritten character references wherein the individuals filled in the blank for how long they knew the applicant, ranging from 
2 to 15 years, and signed and dated the form.  According to the letter, the applicant is a good person, very loving and kind, and would help anyone.  He is an outstanding member of the community and is active in his local church.  

13.  The Table of Maximum Punishments of The Manual for Courts-Martial, United States, 1951, then in effect, showed that the maximum punishment for being AWOL for more than 60 days was a dishonorable discharge and 6 months confinement.

14.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge certificate would be furnished when the individual had conduct ratings of at least "Good," had efficiency ratings of at least "Fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial.  Notwithstanding the foregoing criteria, during the current term of service when disqualifying entries in the individual's service record are outweighed by subsequent honest and faithful service over a greater period of time, an honorable discharge may be furnished.

	b.  A general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.  A discharge under honorable conditions was authorized if an individual had been convicted of an offense by general court-martial or convicted by more than one special court-martial in the current enlistment.  However, this decision was discretionary. 

15.  Army Regulation 635-204 (Personnel Separations, Dishonorable and Bad Conduct Discharge), in effect at the time, stated that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

16.  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 Army Board for Correction of Military Records 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 he was not treated fairly because he is an African-American.  However, he did not provide any substantive evidence to support his contention.  

2.  He contends he was not treated the same as others.  The Table of Maximum Punishments of the Manual for Courts-Martial, United States, 1951 shows the maximum punishment for a charge of AWOL over 60 days is a dishonorable discharge and 6 months confinement.  Therefore, he could have received a dishonorable discharge instead of the bad conduct discharge that was adjudged. The Manual for Courts-Martial applied to all Soldiers without regard to race, color, creed, or national origin.

3.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

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

5.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not sufficiently mitigating to upgrade a properly-issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

6.  He had 265 days of time lost.  When he was apprehended by military authorities on 8 April 1960, he went AWOL again on 11 April 1960 and was again apprehended by military authorities on 31 May 1960.  This raises the question as to his intent to return to military authorities on his own if he had not been apprehended.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his discharge to either an honorable or a general discharge.

7.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement.  Given the seriousness of the offense for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time. 

8.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20130016751



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ABCMR Record of Proceedings (cont)                                         AR20130016751



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