IN THE CASE OF:  	  

		BOARD DATE:  6 August 2015	  

		DOCKET NUMBER:  AR20140019002 


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 correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to upgrade his character of separation from bad conduct to honorable.

2.  The applicant states he only had a 6th grade education because he had to drop out of school to help support his mother and his family in Appalachia.  Until he joined the Army, he had never been out of the hills of Kentucky.  He did not know at the time he was in Germany that selling cigarettes and coffee on the black market was illegal; he did not know what the black market was.  He got caught the first time he sold a pack of cigarettes and was used as the scapegoat for everyone selling goods on the black market.  The military threw the book at him.  He was only trying to support his family in Appalachia. 

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 18 May 2015
* letter from his spouse, dated 21 May 2014
* WD AGO Form 24A (Service Record) pages 1-12
* WD AGO Form 21 (Enlistment Record – Regular Army), dated
8 September 1948
* NME Form 93 (Record of Emergency Data for the Armed Forces of the United States), dated 25 May 1951
* clothing monetary allowance account
* Special Court-Martial Order Number 3697, dated 7 September 1951
* Memorandum, (Application for Restoration), and subsequent endorsements, dated from 28 September 1951 to 10 November 1951
* Board Information Sheet, dated 16 October 1951
* DD Form 214

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 record contains a WD AGO Form 21 showing he enlisted in the Regular Army in Corbin, KY on 8 September 1948, for a period of 2 years.  This form also shows he had an 8th grade education and that one person, his mother, was dependent upon him for support.  His records also show that subsequent to his enlistment, he extended his initial enlistment in the Regular Army for 1 year to a period of 3 years.

3.  Item 13 (Record of Trials by Court Martial) of his WD AGO Form 24A, various DA AGO Forms 115 (Charge Sheet), and several Summary and Special Court-Martial Orders contained in his record show:

	a.  Summary Court-Martial Order Number 29, issued by the 7749th Staging Area, Germany on 31 January 1950, shows he was found guilty and convicted of being disorderly in uniform in a public place [the "Steertebecker" bar] on or about 21 January 1950.  He was sentenced to a forfeiture of $15.00 dollars pay for 1 month.  His court-martial was adjudged and approved on 31 January 1950.

	b.  Summary Court-Martial Order Number 11, issued by the 7749th Staging Area, Germany, on 30 January 1951, shows he was found guilty and convicted of drunk and disorderly, on or about 21 January 1951, at the Bremerhaven Dependent Staging Area.  He was sentenced to a forfeiture of $40.00 dollars of his pay.  His court-martial was adjudged and approved on 30 January 1951.


	c.  Summary Court-Martial Order Number 40, issued by the 7749th Staging Area, Germany, on 21 March 1951, shows he was found guilty and convicted of violating the conditions of his 72-hour pass, on or about 15 March 1951, by being in a location other than that stated/authorized on his written pass.  He was sentenced to a forfeiture of $20.00 dollars of his pay per month for 1 month and reduced to the lowest enlisted grade.  His court-martial was adjudged and approved on 21 March 1951.

	d.  Special Court-Martial Order Number 54, issued by the Headquarters, Bremerhaven Port of Embarkation, Germany, on 29 June 1951, shows he was found guilty and convicted of selling one pound of tea, three pounds of coffee and four cartons of cigarettes to a German national, on or about 8 June 1951.  He was sentenced to forfeiture of $50.00 dollars of his pay per month for 3 months and to perform hard labor for 3 months.  His court-martial was adjudged on 22 June 1951 and approved 29 June 1951.

	e.  Special Court-Martial Order Number 68, issued by the Headquarters, Bremerhaven Port of Embarkation, Germany, on 28 July 1951, shows he was found guilty and convicted of being disorderly in uniform in front of the Tivoli bar, on or about 2240 hours on 7 July 1951.  He was sentenced to be confined at hard labor for 4 months and a forfeiture of $35.00 dollars of his pay per month for 4 months.  His court-martial was adjudged on 25 July 1951 and approved 28 July 1951.

	f.  Special Court-Martial Order Number 75, issued by the Headquarters, Bremerhaven Port of Embarkation, Germany, on 13 August 1951, shows he was found guilty and convicted of breaking restriction on or about 22 July 1951 by leaving the Staging Area at Bremerhaven, Germany.  He was sentenced to a bad conduct discharge, forfeiture of $60.00 dollars of his pay per month for 3 months, and confinement at hard labor for 3 months.  His court-martial was adjudged on 7 August 1951 and approved 13 August 1951.

4.  Special Court Martial Order Number 3697, issued by the Department of the Army, Officer of the Judge Advocate General, Board of Review, Washington, DC, on 7 September 1951, decided that, with respect to the sentence adjudged on 
7 August 1951 [Special Court-Martial Order Number 75], the board found and approved the findings of guilty and only so much of the sentence as provides for a bad conduct discharge, forfeiture of $58.33 of pay per month for 3 months and confinement at hard labor for 3 months correct in law and fact and determined, on the basis of the entire record that the findings of guilty, and the sentence, as thus modified, should be approved and affirmed hereby affirmed the same.  

5.  On 28 September 1951, the applicant requested he be restored to military duty (restoration).  

	a.  On 16 October 1951, a board of officers convened to consider his request for restoration to honorable duty.  The Board decided, after a thorough review of the applicant's military records and a personal interview that the applicant was undependable and unstable.  The board felt the applicant would become a liability to the service if he was restored to duty and received an assignment he disliked.  As such, the board unanimously recommended disapproval of the applicants request for restoration to honorable duty.

	b.  On 2 November 1951, the Commanding General officer concurred with the findings of the Board.  As such, his request was disapproved.  

6.  The applicant was discharged from active duty on 2 November 1951.  His    DD Form 214 shows he received a bad conduct discharge as a result of a court-martial sentence in accordance with Army Regulation 615-364 (Enlisted Personnel Discharge – Dishonorable and Bad Conduct), paragraph 1b, item 38.  

7.  The applicant's wife wrote a letter on his behalf, dated 21 May 2014, wherein she stated:

	a.  In 1948, the applicant did not join the Army to serve his country; he joined the Army to feed his family.  There were few jobs in the Appalachian Hills of Kentucky in 1948.  He was the oldest of seven children and had very little formal education because farm responsibilities continually interrupted his education.  He joined the Army, went to occupied Germany and sent his mother every dime he could squeeze out to help put food on the table for his younger brothers and sisters.  

	b.  The applicant got into trouble because he was a naive young man who was in the wrong place at the wrong time.  He was in a security unit as a guard at a prisoner rehabilitation unit.  Selling certain items to German nationals was against occupation rules but; black market activity was happening all around him. The applicant has told his family he thought he might make a few dollars by joining in with the other Soldiers.  He learned quickly he was never cut out to be a criminal.  As soon as he tried his hand at selling a couple packs of cigarettes and coffee he got caught.  Prior to his involvement in the black market the punishment would have been a "slap on the wrist."  Unfortunately, a new directive had recently been issued stating that the Army should come down hard on all offenders.  As such, the young man from Kentucky who was trying to help his family, received a bad conduct discharge, despite his good intentions, just 3 weeks short of completing his 3-year tour.
	c.  The applicant was raised to take his punishment like a man whether or not it seemed fair.  He did not cry, whine, or go around complaining about the situation; he simply got up, sucked it up and moved forward.  After he got home he found a job, got married and raised children, daughters.  He worked hard, supported his family and taught them to value and honor this country and the church.  He never bad-mouthed the Army.  Now he had three sons-in-law, five grandchildren, and two great grandchildren.  The family he created has a long history of military service.  The character and values of that young man from 1948 are better reflected in his 57 years of marriage, the characters of his children and grand children, and the service he has provided to his church and his community than in the character of his discharge.  

8.  Army Regulation 615-364 (Enlisted Personnel Discharge – Dishonorable and Bad Conduct), paragraph 1b states an enlisted person will be charged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.  

9.  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.

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was an honest young man with a 6th grade education, who joined the Army to provide for his family, and that, due to his ignorance, he was in wrong place at the wrong time when he sold coffee and cigarettes to a German national on the black market.  Further, that he was unfairly treated and used as a scapegoat, court-martialed, and discharged from the Army with a bad conduct for this offense.  

2.  The applicant also states he should be judged on the basis of his entire military record and the values he has instilled in his family instead of one incident involving the sale of coffee and tobacco.

3.  The applicant's statements are contradicted by the evidence in his military record.  The applicant had an 8th grade education and was not discharged as a result of the singular court-martial that convicted him for selling goods on the black market.  

4.  The evidence of record shows the applicant completed 2 years, 10 months, and 17 day of net active service and he had 98 days of lost time, most likely due to confinement at hard labor.  During this period of service he was court-martialed on six separate occasions (three summary courts-martial and three special courts-martial).  The majority of these convictions (three) were for being drunk and disorderly in uniform, one was for violating the terms of a pass, one for selling goods on the black market, and the last was for breaking restriction by leaving post.  This conviction for breaking restriction resulted in a sentence of a bad conduct discharge.  His bad conduct discharge is not just the result of the 6th and final court-martial, or one offense.  This sentence took his previous five court-martial convictions into account prior to sentencing.  

5.  Therefore, in the absence of evidence to the contrary, it reasonable to presume that the applicant was properly and equitably discharged in accordance with the laws and regulations in effect at that time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.

6.  Furthermore, 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, it is presumed that the type of discharge directed and the reasons therefore were appropriate.

7.  The fact that it has been more than 60 years since his discharge, and that he has been a good upstanding citizen and raised his children to have strong morals, values and a love for their country, is commendable.  However, the ABCMR does not upgrade discharges solely based on the passage of time or post-service conduct.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20140019002



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ABCMR Record of Proceedings (cont)                                         AR20140019002



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