BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140007298 


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 (GD).  

2.  He states:

	a.  He was unjustly treated as an African-American Soldier.  He is presently homeless and cannot receive housing benefits from the Department of Veterans Affairs (VA) due to his BCD.

	b.  He was subjected to many forms of racial harassment during his time in the Army.  He fought for his country on the front lines in the Korean War, fighting in many engagements with the enemy.  He was repeatedly called a [racial epithet] and told he did not belong in the Army.  He was made to go by himself to a mountain listening post above his unit's position at night when other members of his unit always had at least four people in the listening post.  When members of his unit would tell him to come in at night they would make remarks such as "Unfortunately you made it through another night" or "Why couldn't it have been you that got waxed?" 

	c.  When he returned to the United States, a sergeant who gave him a hard time in Korea was in the chow hall and kept calling him a [racial epithet] along with other bad words.  He couldn't take it any more.  He punched the sergeant in the mouth and told him never to call him that again.  He was arrested, tried by court-martial, and discharged.

	d.  It has bothered him his entire life that he could volunteer to go fight and then be treated that way in Korea and after his return.  It made him feel bad about himself and this country.  He has done the best he could since then, but his experiences made him not trust anyone.  He is now 82 years of age, and he has been living in his car for years.  He wonders what his life would have been like if he had been treated like everyone else in his unit.  He was a good Soldier who fought for his country, but one can't imagine what it's like to not be accepted by others in a unit just because of one's race.

3.  He provides:

* correspondence from the Army Review Boards Agency
* letter of support from the Executive Director, Bridge House
* letters of support from a Homeless Outreach Social Worker, VA New England Healthcare System
* VA letter informing him of a favorable decision regarding his discharge
* DD Form 214 (Report of Separation from the Armed Forces of the United States)

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.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC), St. Louis, MO, in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using the DD Form 214 and other documents he has provided.

3.  His DD Form 214 shows he enlisted in the Regular Army on 12 February 1951, and he received a BCD on 17 June 1954 under the authority of Army Regulation 615-364 (Discharge – Dishonorable and Bad Conduct), paragraph 1b, and by sentence of court-martial.  The form confirms that he is African-American.  He completed 2 years, 8 months, and 11 days of total net service, and he had 1 year and 3 days of foreign service.  His DD Form 214 does not show where he performed his foreign service, and it shows no awards and decorations.

4.  Item 38 (Remarks) of the DD Form 214 shows a sentence was promulgated in general court-martial orders issued on 8 January 1954 by Headquarters, First Army, Governors Island, NY.  The sentence was affirmed in orders issued on 16 April 1954 by the same headquarters.  Item 38 also shows he had 250 days of lost time.

5.  He provides:

	a.  letters of support from a Homeless Outreach Social Worker, VA New England Healthcare System, summarizing the applicant's statements regarding his military service, describing his recent living conditions, and stating he is ineligible for VA services because of his BCD;

	b.  a letter of support from the Executive Director, Bridge House, Plymouth, NH, stating, in effect, that the requested correction will make the applicant eligible for VA housing benefits; and 

	c.  a VA letter, dated 27 March 2014, notifying him that his BCD is not a bar to VA benefits.  The letter shows that, under the VA's statutory authority, a determination was made that his sanity was an issue at the time the offense was committed.  As such, his behavior did not establish a pattern of willful and persistent misconduct.  He was informed he is entitled to healthcare for any disabilities determined to be service connected.

6.  Army Regulation 615-364, in effect at the time, stated an enlisted person could be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD.

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a GD 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.

8.  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 does not support the applicant's request for an upgrade of his BCD to a GD.

2.  His race, age, and his homelessness are noted.  While these facts elicit sympathy, they should not, on their own, serve as a basis for clemency.  They must be considered against the misconduct that resulted in his BCD.  Unfortunately, other than his own statement, there is no documentary evidence showing the basis for his general court-martial sentence to a BCD.  Although his statement appears to have been sufficient for determining his eligibility for VA healthcare benefits, it is insufficient as a basis for moderating the severity of the punishment he received.

3.  In the absence of evidence showing otherwise, it must be presumed that his conviction and discharge were effected in accordance with applicable law and regulations and that the discharge appropriately characterizes the misconduct for which he was convicted.  

4.  In view of his conviction by general court-martial, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.

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)                                         AR20140007298





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ABCMR Record of Proceedings (cont)                                         AR20140007298



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