IN THE CASE OF:
BOARD DATE: 17 September 2015
DOCKET NUMBER: AR20150000283
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, in effect, his 1954 summary court-martial conviction be overturned.
2. The applicant states, in effect:
a. He was unjustly court-martialed for conduct unbecoming a noncommissioned officer (NCO). He never had a formal hearing, but was reduced in rank by his commanding officer.
b. There is no record of a court-martial in his files.
c. He was the victim of racial discrimination and harassment for correcting a commanding officer for using the term "negra" instead of "negro" when referring to a Black Soldier.
d. He was wrongfully court-martialed due to deliberate discrimination in December 1952. He was reduced from E-6 to E-5 based on conduct unbecoming an NCO (he overstayed his 30 minute pass by 15 minutes).
e. He retired in 1968. He is working on his Doctor of Philosophy in Biblical Studies.
3. The applicant provides no additional evidence.
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 enlisted in the Regular Army on 8 September 1948 and remained on active duty through continuous reenlistments. He served as an infantryman in Korea from 28 December 1948 to 21 September 1950.
3. On 6 December 1951, charges were preferred against him for maltreating a private by striking him in the face with his fist. Trial by summary court-martial was recommended. The applicant pled not guilty to the offense and he was acquitted of the charge. On 11 December 1951, the convening authority approved the sentence.
4. Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was reduced from sergeant first class/E-6 to sergeant/E-5 on 1 June 1954 by reason of a summary court-martial conviction (Headquarters, 6th Armored Cavalry Regiment, Special Orders 122, dated 1954; however, this court-martial order is not available for review.
5. On 30 September 1968, he retired in the rank of staff sergeant.
6. 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.
7. Title 10, U.S. Code, Section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he was court-martialed due to racial discrimination and harassment. However, there is no evidence of record, and he provided no evidence, that indicates he was a victim of racial discrimination.
2. By law, this Board cannot disturb the finality of a court-martial conviction, and the applicant has not established a basis for granting clemency. Therefore, there is no basis for granting the applicants request.
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) AR20150000283
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ABCMR Record of Proceedings (cont) AR20150000283
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