IN THE CASE OF:	   

		BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140000777 


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 bad conduct discharge (BCD) to a general discharge.

2.  The applicant states he is a combat veteran who served in Korea up until he was involved in a non-combat jeep accident on 8 September 1952.  He was hospitalized and transferred to Fort Custer, MI, pending discharge.

   a.  He was authorized a weekend pass and he did not return as scheduled.  In September 1953.  He made one attempt to return, but the camp had been permanently closed.  He was apprehended in September 1954 and subsequently discharged.

   b.  He states his mother died when he was only 3 years old and a hired housekeeper took care of him and his siblings.  His father was a strict disciplinarian and administered corporal punishment to him and his siblings for behavioral issues.

   c.  He joined the Army to "escape" his home life.  He now believes that his childhood experiences and the stress of combat service contributed to his heavy drinking and adversely impacted his ability to make good decisions.

   d.  He has been married for more than 60 years, he and his wife raised five children all of whom are successful in life, and he is now retired.

3.  The applicant provides copies of seven character reference letters, a photograph, and documents from his reconstructed military service records.

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 service records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient available documents in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army on 26 September 1949 for a period of 3 years.  He voluntarily extended for a period of 1 year under Public Law 624.  He was awarded military occupational specialty 5740 (Low Speed Radio Operator).  

4.  The available evidence contains several DA Forms 1 (Morning Reports) and Admission and Disposition Reports for Overseas Hospitals, spanning the period 6 August to 12 December 1952, that show, in pertinent part, effective -

* 1 August - assigned to Battery C, 37th Field Artillery, 2nd Division Artillery, 2nd Infantry Division (Korea)
* 6 September - admitted to an unknown hospital (Non-Battle Injury – Right Clavicle, Accidentally Incurred when he jumped from a Truck, 
Line of Duty:  Yes)
* 17 September - reassigned to the 121st Evaluation Hospital (Surgical Mobile (SMBL)) (Korea)
* 22 September - released from the Medical Hold Detachment, 
121st Evacuation Hospital (SMBL) and evacuated to Japan
* 22 September - admitted to the 279th General Hospital (Japan)
* 27 October - released and transferred to Camp Drake, Replacement Depot
* 31 October - duty status changed from "Hospital" to "AWOL" (Absent Without Leave)
* 5 November - duty status changed from "AWOL" to "Hospital"
* 13 November - confined U.S. Army Stockade pending action
* 12 December - duty status changed from "Confinement" to "Hospital Confinement"

5.  Headquarters, U.S. Army Hospital, 8040th Army Unit, Special Orders Number 275, dated 12 December 1952, assigned the applicant to Camp Drake Replacement Depot, 8042nd Army Unit, for processing and subsequent reassignment, effective 13 December 1952.

6.  Headquarters, Fort Lewis, WA, General Court-Martial Order Number 230, dated 9 December 1954, shows the applicant was tried by a general court-martial.

	a.  He pled not guilty and he was found guilty of being AWOL from 5 March 1953 to 16 September 1954, when he was apprehended.

	b.  His sentence was adjudged on 30 November 1954.  He was sentenced to be discharged from service with a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for six (6) months.

   c.  On 9 December 1954, the General Court-Martial Convening Authority approved the sentence, but the execution of the portion adjudging a bad conduct discharge was suspended until the applicant's release from confinement or until completion of the appellate review, whichever occurred latest.  He also directed the Record of Trial be forwarded to The Judge Advocate General of the Army for review by a board of review.

7.  The Record of Trial, in pertinent part, shows the applicant had a record of two prior convictions by court-martial during his military service.

8.  On 30 December 1954, the U.S. Army Board of Review reviewed the applicant's case and affirmed the findings of guilty and the sentence.

9.  On 17 January 1955, the applicant acknowledged receipt of the decision and that he was advised of his right to petition the Court of Military Appeals for a grant of review with respect to any matter of law within 30 days.  There is no evidence the applicant petitioned the Court of Military Appeals.

10.  Headquarters, Fort Lewis, WA, General Court-Martial Order Number 15, dated 18 January 1955, remitted the unexecuted portion of the applicant's sentence to confinement at hard labor for 6 months.

11.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he was separated on 24 January 1955 with a bad conduct discharge under the provisions of Army Regulation 615-364, paragraph 1b (Sentence of court-martial), with Separation Program Number (SPN) 45.  He was credited with 3 years, 1 month, and 14 days of net active service this period and he had 806 days of lost time.

12.  In support of his request the applicant provides seven character reference letters written by Mrs. Gladys T----- (his spouse); Ms. Mary M-----; Father Dick 
S-------, Pastor, Holy Spirit Catholic Parish, Great Falls, MT; Captain (Retired) Daniel D. W----, Park County Sheriff's Department, Clyde Park, MT; Mr. R.W. "Rusty" C------; Mr. Ben G----, Assistant General Foreman (Retired), Burlington Northern Santa Fe Railway; and Mr. Jim Rose, Shields Valley High School, Agriculture Education Instructor/Future Farmers of America Advisor, Clyde Park, MT.  They all highly recommend the applicant in the pursuit of his endeavors.  The letters also show the applicant -

* has been married for 60 years, he has 5 children, 12 grandchildren, and 
4 great grandchildren
* is honest, hard-working, personable, and a good provider
* is a leader in his church, the Boy Scouts of America, and 4H Club
* is an experienced machinist, relief foreman, and cabinet maker
* has hobbies that include radio controlled model airplanes, tropical fish breeding, exotic orchid gardening, bee keeping, and cabinet making
* shares his skills, experience, and interests with others by participating in church and community projects, and volunteer activities with youth

13.  Army Regulation 615-364 (Enlisted Personnel – Discharge – Dishonorable and Bad Conduct), in effect at the time, provides policy authorizing an enlisted person to 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.  It shows that when the discharge is for reason of desertion, the reason and authority for discharge to be entered in item 8 of the DD Form 214 will be "AR 615-364 SPN 45."

14.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3, 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.  Chapter 3, 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.

15.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 that his bad conduct discharge should be upgraded because his life experiences as a youth and his combat experiences contributed to his heavy drinking and adversely impacted his ability to make good decisions; however, he has been a responsible person since he was discharged.

2.  The applicant's contentions regarding the reasons that contributed to the incident that led to his court-martial and discharge were matters for consideration at his court-martial and during the appeal process.  In any event, there is no evidence of record and the applicant provides no evidence to support his contentions.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  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 evidence of record shows that during the period of service under review the applicant was AWOL for more than 1 year and 6 months, he had two prior convictions by court-martial, and he was convicted by general court-martial and issued a bad conduct discharge.  Thus, the applicant's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.  

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

8.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, his post-service conduct is insufficient as a basis for changing or upgrading his discharge.

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)                                         AR20140000777



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ABCMR Record of Proceedings (cont)                                         AR20140000777



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