IN THE CASE OF:	

		BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20150002904 


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 his dishonorable discharge be changed to honorable.

2.  The applicant states, in effect:

* he acknowledges he was absent without leave (AWOL), but played no part in the beating of the cab driver
* he is now 73 years old and in a wheelchair; he does not want to live any longer with a dishonorable discharge

3.  The applicant provides no additional evidence or documentation.  He did, however, submit additional information as part of his request for assistance from his Congressman.  This information has been included.


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 records show he enlisted in the Regular Army on 5 November 1959.  He was discharged on 24 August 1961 for the purpose of immediate reenlistment.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 9 months, and 20 days of net active creditable service.  He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

3.  He reenlisted in the Regular Army on 25 August 1961.  He was, at the time, assigned to Battery A, 2nd Howitzer Battalion, 5th Artillery Regiment in Germany.

4.  His records contain his DA Form 24 (Service Record).  

	a.  Section I (Appointments, Promotions, or Reductions) shows he was reduced on two occasions between November 1959 and March 1962:

* 27 September 1960 - reduced from private first class (PFC)/E-3 to private (PV2)/E-2
* 14 March 1962 - reduced from PFC/E-3 to PV2/E-2; an annotation states the reduction is due to misconduct

	b.  Section 6 (Time Lost under Section 6(a), Appendix 2b, Manual for Courts-Martial, 1951 and Subsequent to Normal Date Expiration of Term of Service) shows the applicant was in an AWOL status from on or about 16 April 1962 to 18 April 1962 (a period of 3 days).  His records do not reflect what, if any, action was taken by his chain of command.

5.  On 11 June 1962, the applicant pled guilty to acting jointly with another Soldier to commit robbery and assault against a German National.  He was convicted by a general court-martial and sentenced to a dishonorable discharge, total forfeiture of pay, reduction to private/E-1, and confinement at hard labor for 4 years.

6.  On 20 June 1962, the Staff Judge Advocate, V Corps provided the V Corps Commanding General (CG) an Army Europe (AE) Form 71 (Review of the Staff Judge Advocate) that included a summary of the case.  A portion of the applicant's sworn testimony was provided, and it stated, in pertinent part:

"As we were walking toward Aschaffenburg, [the other Soldier] and I got to talking about how we could get some money.  We both came up with the idea of robbing a cab driver.  As we were walking up the road from Gailbach to Schweinheim, I saw a piece of aluminum pipe laying in the ditch.  [The other Soldier] picked it up and said something about 'It would make a good club for knocking somebody out,' or words to that effect."

"We picked up a cab on the traffic circle in the middle of town, in front of the big department store."

"After getting into the cab I told the driver we wanted to go to Gailbach.  The reason that I told the driver to go there is because I know that the road to Gailbach is dark and deserted, and that there are several spots on the road that are good for committing a robbery.  We also intended to take the cab, if the robbery was successful."

"I told him (the cab driver) to stop [because] I had to [urinate].  He stopped and I got out, and [the other Soldier] stayed in the car."

"As I was getting back in the car, [the other Soldier] hit the driver over the head with the pipe he was carrying.  The blow did not knock out the driver.  The driver opened the door of the cab and got out and started hollering something in German.  Then [the other Soldier] and I got out of the cab and started running across the field."

7.  On 21 June 1962, the general court-martial convening authority (V Corps CG) approved only so much of the sentence that provided for a dishonorable discharge, total forfeiture of pay, reduction to the lowest enlisted grade, and 2 years of confinement at hard labor.  The applicant was sent to the U.S. Army Disciplinary Barracks at Fort Leavenworth, KS.

8.  On 25 July 1962, the Board of Review, U.S. Army, affirmed the findings and sentence.

9.  General Court-Martial Order Number 674, dated 10 September 1962, issued by Headquarters, Fort Leavenworth, KS, stated the sentence had been affirmed and directed the sentence be duly executed.  The applicant was discharged accordingly on 29 September 1962.

10.  His DD Form 214 shows he completed 7 months and 23 days of net active creditable service, with 1 year, 9 months, and 20 days of other service, and 165 days of lost time.  He was not authorized any awards or decorations.  The reason and authority is shown as paragraph 1a, Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad-Conduct Discharges), and the character of service is dishonorable.
11.  His record contains a DA Form 1707 (Certificate of Parole), dated 7 August 1963, which indicates he was to be released on parole from the U.S. Army Disciplinary Barracks on or about 21 September 1963.  The term of the parole was granted until 10 June 1964.  Also on this form is a statement showing the applicant was released on parole on 22 August 1963.

12.  On 20 December 2014, the applicant requested assistance from his Congressman and provided the following: 

	a.  Request for Congressional Inquiry and Privacy Release, wherein the applicant stated:

* during the trial in Germany, he admitted to being AWOL, but he was never part of the beating of the cab driver
* he is now 73 years old and in a wheelchair
* he desperately desires his discharge to be changed to a general under honorable conditions discharge
* he does not want this dishonor hanging over his head any longer

	b.  Letter, undated, addressed to his Congressman:

* he enlisted in the Army in Tyler (TX) on 5 November 1959
* he went through basic training here in the U.S.
* on his 19th birthday he was shipped to Barbenhausen [sic, Babenhausen] Germany where he spent a year and a half
* he is not trying to make excuses nor lie; he got in with the wrong crowd and went AWOL in Frankfurt; he does not know why
* he went AWOL with another Soldier who was from New York
* they walked around for a couple of days; they were both broke and starving
* the other Soldier hailed a cab and said he knew a way to get some money; the applicant states "dumb me, I went along with it, but not what happened afterwards"
* they were driving to a bar when the other Soldier suddenly started beating the cabdriver on the head with a piece of pipe
* he got out of the car and ran as far as he could but some Germans called the military police; he and the other Soldier were locked up

	c.  He continued:

* after several changes in Germany, then to Ellis Island, he and the other Soldier were sent to Fort Leavenworth, KS where he stayed until 24 August 1963
* he and the other Soldier had a general court-martial in Germany; he admitted to being AWOL but had no part in the beating
* he was able to come home on parole until his time was up; both he and the other Soldier received a dishonorable discharge
* after he came home, he married a girl and had a daughter who later died from diabetes complications; he and the girl divorced within 
2 years
* he then met his present wife; they now have two children and have been married 43 years
* their son served in the U.S. Marine Corps and they have a grandson who is currently serving in the Marines
* the reason he is writing is to see if there is any way that his discharge can be overturned and made honorable
* he is 73 years old and this weighs heavy on his heart

13.  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.

14.  Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, prescribed policy and procedures for enlisted separations.

	a.  An honorable discharge is a separation with honor.  It is conditioned upon proper military behavior, and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned.  

		(1) Notwithstanding the criteria listed below, when disqualifying entries are outweighed by subsequent honest and faithful service over a greater period of time or the nature of a conviction, in the opinion of the officer effecting discharge, is not too serious, and the remainder of the service has been honorable, an honorable discharge can be granted.  

		(2) To receive an honorable discharge, the individual had to meet the following qualifications:

* conduct ratings of at least "Good"
* efficiency ratings of at least "Fair"
* not convicted by a general court-martial
* not convicted more than once by a special court-martial
   
	b.  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.

15.  Army Regulation 635-204 provided for separation of enlisted personnel with a dishonorable discharge based on an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He pled guilty to and was found guilty of the specification charged.  He was given a dishonorable discharge pursuant to a general court-martial empowered to adjudge such a discharge.  This type of court-martial was warranted given the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

2.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction 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.  The evidence does not support clemency as being warranted in this case.  

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)                                         AR20150002904





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ABCMR Record of Proceedings (cont)                                         AR20150002904



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