IN THE CASE OF: 

		BOARD DATE:	    24 July 2014

		DOCKET NUMBER:  AR20130019610 


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.  He states:

	a.  The incident that led to his dishonorable discharge was the only incident that happened.  He was called the "N" word on a daily basis by fellow Soldiers and his superior officer.  One day he made the bad decision to defend the rights he thought he had.  He allowed someone to get to him in a way he would never want to experience again.  He was a proud Soldier for the U.S. Army, not the "N" word.

	b.  He is now 82 years of age and he only wants the same respect given to his fellow service members.  He has owned a business for over 47 years.  He wants his record cleared for his children and grandchildren and he wants the benefits he is due.

3.  He provides a self-authored statement, his DD Form 214 (Report of Separation from the Armed Forces of the United States), and correspondence from the Department of Veterans Affairs.

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 were damaged in a fire that destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC), St. Louis, MO, in 1973.  This case is being considered using the reconstructed records provided by the NPRC.

3.  On 29 May 1952, the applicant was inducted into the Army of the United States.

4.  The block for race on his Service Record shows the entry "Negroid."  His Service Record shows in:

	a.  section 4 (Service Outside Continental United States), he arrived in Korea on 8 September 1953;

	b.  section 12 (Time Lost under Articles of War 107 and Subsequent to Normal Date of Expiration of Term of Service), he was:

		(1)  absent without leave (AWOL) during the following periods:

* 26 to 29 June 1952
* 8 to 16 August 1952
* 29 August to 7 October 1952
* 24 January to 22 February 1953

		(2)  in confinement during the following periods:

* 11 October 1952 to 20 January 1953
* 23 February to 11 March 1953

	c.  section 13 (Record of Trials by Courts-Martial), in part, he was convicted by:

* a summary court-martial of being AWOL from 8 to 17 August 1952
* a special court-martial of being AWOL from 29 August to 8 October 1952 and from 24 January to 23 February 1953

5.  Headquarters, 3d Infantry Division, General Court-Martial Order Number 148, dated 6 October 1954, shows he was found guilty pursuant to his pleas of:

	a.  willfully disobeying a lawful order from a superior noncommissioned officer (NCO) on 23 August 1954 and

	b.  committing an assault upon the same NCO on 23 August 1954 by striking him on the jaw with his fist and by kicking him in the groin, thereby intentionally inflicting grievous bodily harm upon him, to wit:  a fractured jaw and a contusion of the right testicle.

6.  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.

7.  On 29 October 1954, the U.S. Army Board of Review found the findings of guilty and the approved sentence to be correct in law and fact and affirmed the approved sentence.

8.  On 21 March 1955, Headquarters, 6th Infantry Division, issued General Court-Martial Order Number 197 ordering execution of the affirmed sentence.

9.  His DD Form 214 shows he was dishonorably discharged on 27 March 1955 by reason of sentence by court-martial under the provisions of Army Regulation 615-364 (Enlisted Men – Discharge – Dishonorable and Bad Conduct).

10.  Army Regulation 615-364, in effect at the time, stated an enlisted person would be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing dishonorable discharge.

11.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

12.  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 available evidence of record does not support the applicant's request for an upgrade of his dishonorable discharge.

2.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  Further, the passage of time and post-service accomplishments are not usually a sufficient basis for upgrading a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  He was convicted of willfully disobeying a lawful order from an NCO and assaulting an NCO that caused grievous bodily harm.  His conviction and sentence by general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given his dishonorable discharge until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Board of Review.

4.  His statements regarding being subjected to racist language were carefully considered.  There is no reason to doubt his statements; however, the situation he describes does not mitigate the seriousness of the offenses for which he was tried and convicted.




5.  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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20130019610



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ABCMR Record of Proceedings (cont)                                         AR20130019610



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