BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140013800 


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, the daughter of a deceased former service member (FSM), requests an upgrade of his dishonorable discharge (DD) to an honorable discharge (HD).

2.  The applicant states she believes that receiving a DD for being absent without leave (AWOL) from the United States Army is too harsh.  She states the FSM:

* was a shy, poorly educated homebody who took care of his mother and three younger sisters
* quit school in the 8th grade to get a job to help with expenses because his mother was raising five children on her own 
* entered the Army when he was barely 20 years of age and was very immature
* returned home on leave and his mother was afraid he would be injured or killed so she persuaded him to stay home because he was needed by his family
* made the wrong decision not to return to the Army
* after discharge, worked as a automobile mechanic
* later purchased land, built a home, and owned a service station
* was a dedicated family man and well respected in the community
* sponsored many of the baseball and softball teams and he attended church until he died in 2003
* was a good, unselfish, and generous man who set an example of a outstanding citizen

3.  The applicant provides:

* Army Review Boards Agency (ARBA) letter, dated 4 August 2014
* Representative in Congress letter, dated 9 July 2014
* Privacy Act Notice, dated 23 June 2014
* Driver License and Certificate of Live Birth
* ARBA letter, dated 8 August 2011
* Self-authored letter, dated 15 July 2011
* Certificate of Death
* Selective Service System Notice of Classification
* Affidavit to Amend Record of Birth, 16 September 1969
* Certificate of Birth
* 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 FSM's military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents provided by the applicant to conduct a fair and impartial review of this case.

3.  The FSM was born on 28 November 1930.  He was inducted into the Army on 19 November 1952.  He was 21 years, 11 months, and 23 days old at the time of his induction.

4.  On 14 December 1955, the FSM was discharged under the provisions of Army Regulation 615-364.  His DD Form 214 shows he was discharged in accordance with General Court-Martial Orders Number 105, Headquarters, Fort Benning, Georgia dated 9 July 1954 and General Court-Martial Order Number 942, Headquarters Group, Fort Gordon, Georgia, dated 7 September 1954.  He had 629 days of lost time (due to AWOL and confinement) and 391 days of lost time subsequent to what would have been his normal expiration term of service.  He completed 3 months and 8 days of net service for pay purposes.  He received a DD Certificate.

5.  The FSM died on 17 August 2003.

6.  Army Regulation 615-364 (Enlisted Personnel – Discharge – Dishonorable and Bad Conduct), in effect at the time, stated, in pertinent part, that an enlisted Soldier will be discharged with a DD pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

7.  Army Regulation 635-200 (Enlisted Personnel Separations) governs the policies and procedures for the separation of enlisted personnel. 

     a.  Paragraph 3-7a states an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

     b.  Paragraph 3-7b states a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was 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 applicant's contention that the FSM's DD should be upgraded because he has lived a good life since his discharge and feels he has been a good person was carefully considered.  However, by law, any redress by this Board of the finality of a court-martial conviction under the Uniform Code of Military Justice 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.

2.  In this case, the available evidence reveals no error or injustice.  Other than the applicant's contentions, the available evidence reveals no acts of valor or significant achievement; however, it does reveal a disciplinary history that includes 629 days of lost time and a general court-martial conviction.

3.  It must be presumed that the FSM's entire military record was considered during his trial by court-martial and the convening authority determined that the DD was the appropriate characterization of service.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Her request should be denied.

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)                                         AR20140013800



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ABCMR Record of Proceedings (cont)                                         AR20140013800



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