IN THE CASE OF:  

		BOARD DATE:  29 October 2015	  

		DOCKET NUMBER:  AR20140020642 


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 upgrade of his dishonorable discharge to an honorable discharge.  

2.  The applicant states:

* he wants to clear his name from the accusations
* he is 83 years old and has a large extended family
* he feels that the Army made a mistake
* he was dishonorably discharged for an offense he did not commit

3.  The applicant provides:

* two letters dated 11 March 2014 and 21 November 2014, from the Chief, Case Management Division, Army Review Boards Agency
* self-authored statement
* two Congressional letters dated 16 May 2013 and 11 March 2014
* DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 13 January 2014
* Certification of Military Service, dated 18 July 2011

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 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 documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's Certification of Military Service shows he enlisted in the Regular Army on 15 October 1948.  

4.  His reconstructed record includes a disciplinary history that shows:

	a.  on 20 November 1950, he was convicted by a summary court-martial of being absent without leave (AWOL) from 25 October to 3 November 1950.  His punishment was forfeiture of $50.00.  The court-martial order is not available.

	b.  on 19 March 1952, he was convicted by a summary court-martial of lending license plates.  The court-martial order is not available.  

	c.  on 3 June 1952, he was convicted by a summary court-martial of disorderly conduct and assault and battery.  The court-martial order is not available.  

	d.  on 8 July 1952, he was convicted by a general court-martial of two specifications of committing sodomy with a sergeant (SGT).  

         (1)  his sentenced was a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years.  
   
   (2)  on 6 August 1952, only that portion of the sentence as provided for 
the dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years was approved.  
   
   (3)  on 28 August 1952, the Office of The Judge Advocate General, Board
of Review, U.S. Army affirmed the findings of guilty and the sentence.  

        (4)  on 3 February 1953, the dishonorable discharge was ordered executed.  
   
        (5)  the portion of the sentence pertaining to confinement in the excess of 1 year and 6 months was remitted by the order of the Secretary of the Army.  

5.  His reconstructed record includes a review by the Staff Judge Advocate, dated 1 August 1952, which provides a summary of the evidence for the prosecution and the defense, including testimony of the applicant:

	a.  As to Specification 3 of the Charge:  the evidence for the prosecution indicated the applicant and Private (PVT) S met with SGT H in a cadre room on a day in February 1952.  PVT S and the applicant committed acts of sodomy with SGT H.  For so doing, PVT S received "some" money and the applicant, received a pair of shoes.  

	b.  As to Specification 4 of the Charge:  the evidence for the prosecution indicated the PVT and the applicant called SGT H about some money on or about 15 March 1952.  They played pool for a short while, did some drinking, and again committed acts of sodomy with SGT H in which they were given a dollar by SGT H.

	c.  The evidence for the prosecution also indicated that the applicant took a suit from SGT H then he and PVT S hid it behind a sign board.  They were apprehended by military police and taken to the military police headquarters and questioned concerning the theft of the suit.  At that time, nothing was said regarding the acts of sodomy.  The next day, the applicant and PVT S were questioned by a Criminal Investigation Division (CID) agent.  The applicant was advised of his rights against self-incrimination.  The agent questioned him about the theft of the suit.  The applicant volunteered the sexual acts information to the CID agent.  Up until this time neither the applicant, PVT S nor SGT H had been suspected of acts of homosexuality.  This information by the applicant was volunteered freely with no premise, threat or inducement after being advised of his rights against self-incrimination and was apparently offered as an explanation for taking of the suit.  

	d.  The evidence for the defense indicated that the applicant testified that on 15 March 1952, he and PVT S visited SGT H's room to invite him to go to Asbury Park with them.  He admitted that he took a suit that belonged to SGT H and along with PVT S, they hid it on the Eatontown Circle.  They were later apprehended by military police.  He was later questioned by a CID agent in regard to the theft of the suit.  The investigator informed him that SGT H was a "queer" and that he was interested in getting SGT H out of the Army.  The agent told him that if he would testify against SGT H he would only be tried for the theft of the suit and not for sodomy.  He relied on that promise and made the statement, which was not true, but he made it as a result of the investigator's promise, to hurt SGT H for reporting the theft of the suit, and to get SGT H out of the Army.  The applicant stated that he did not commit any acts of sodomy with SGT H.

6.  His DD Form 214 (Report of Separation) is not available.  However, his Certification of Military Service shows he was discharged on 8 July 1952 with a dishonorable discharge.  

7.  On 16 June 1982, the ABCMR denied the applicant's request for an upgrade of his dishonorable discharge to honorable.  

8.  He provided a self-authored statement in which he states:

	a.  he completed 4 years of service in the Army, has 18 children and numerous grandchildren and great grandchildren.

	b.  he is trying to clear his name because he was accused of an offense he did not commit.  He has written to many people and is willing to take a lie detector test to prove his innocence.  He is willing to pay for the lie detector test and for his hearing.  He's now 83 years old and doesn't want to take these accusations to his grave.  

	c.  he has a pace maker and had open heart surgery.  He is half deaf and has serious medical problems.  

	d.  he cannot read or write, he is on social security, his wife passed away in 2007, and his children take care of him.  He really wants to come to Washington, D.C. to prove his innocence, but he cannot afford it.  

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel.  

   a.  Paragraph 3-10 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.
   
	b.  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.

10.  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.

11.  The "Don't Ask, Don't Tell" (DADT) policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.

12.  Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under DADT or prior policies.  The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the:

* narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF)
* characterization of the discharge to honorable
* the Reentry Eligibility code to an immediately-eligible-to-reenter category

13.  For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met:

* the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT
* there were no aggravating factors in the record, such as misconduct
14.  The memorandum further states that although each request must be evaluated on a case-by-case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors.

15.  The memorandum also recognized that although BCM/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is DOD policy that broad, retroactive corrections of records from applicants discharged under DADT [or prior policies] are not warranted.  Although DADT is repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law.  Similarly, DOD regulations implementing various aspects of DADT [or prior policies] were valid regulations during those same or prior periods.  Thus, the issuance of a discharge under DADT [or prior policies] should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a general court-martial of two specifications of committing sodomy in 1952.  He was sentenced to forfeiture of all pay and allowances, confinement at hard labor for five years, and a dishonorable discharge.  The convening authority disapproved the sentence to the extent confinement at hard labor exceeded 2 years.  Clemency was later granted such that the sentence to confinement at hard labor was reduced to 1 year and 6 months.  The applicant was discharged on 8 July 1952 with a dishonorable discharge.

2.  The applicant's contention that he feels the Army made a mistake is acknowledged.  However, his trial by court-martial was warranted by the gravity of the offenses charged and his conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time.  

3.  The applicant's contention that he was dishonorably discharge for an offense he didn't commit was carefully considered.  The evidence of record indicates that it was the SGT and not the applicant who initiated the sexual liaisons between himself, the applicant, and a third PVT/E-1.  Although the facts suggest that the applicant may have received from the SGT items of minor value (i.e., shoes, a few dollars) in exchange for his sexual cooperation, there is no evidence that the applicant engaged in any activity that could overtly be described as "prostitution."  Both sexual episodes occurred in the NCO's government quarters.  

4.  In the review by the Staff Judge Advocate, it is noted that the applicant testified he made the statement regarding committing the acts of sodomy based on the promise made by the CID agent that he would only be tried for the theft of the suit.  He claims the statements regarding sodomy were not true and that he made them only because of the promises the agent made during an interview concerning the theft of a suit.  Based on the applicant's own personal testimony, he was appropriately charged with the offense of committing acts of sodomy.  

6.  The facts of this case indicate that an NCO with an ability to exercise military authority relative to the applicant abused his rank to orchestrate the sexual liaisons that led to the court-martial charges.  

7.  The applicant's service record also includes three convictions by summary court-martial for being AWOL for 9 days; for unlawfully lending to another person a car license plate; and for assault and disorderly conduct.

8.  It is unlikely that the applicant's misconduct would today be referred to a general court-martial as it was handled in 1952.  In this case, consideration cannot be given to the Under Secretary of Defense's 20 September 2011 memorandum concerning characterization upgrades to service members discharged under the provisions of now-rescinded DADT regulations.  Based on today’s DADT standards, the Board can grant him clemency by amending the court-martial conviction to show he received a general, under honorable conditions discharge.  The Board is not empowered to remove the court-martial conviction or change the reason and authority for discharge.

9.  The applicant's overall record of service is not sufficiently meritorious as to warrant upgrading his discharge to a fully honorable discharge, as he received summary court-martial convictions for other offenses.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a. amending his general court-martial order to show he was discharged with a general, under honorable conditions discharge and then correcting his Statement of Military Service to also show a general, under honorable conditions discharge effective the date of this board; and

   b. issuing him a General Discharge Certificate.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the applicant's dishonorable discharge to an honorable discharge.  




      __________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)                                         AR20140020642



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ABCMR Record of Proceedings (cont)                                         AR20140020642



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