PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           28 January 1999                   
	DOCKET NUMBER:   AR1998012217

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Robert W. Garrett		Member	
	Mr. Curtis L. Greenway		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his dishonorable discharge be upgraded to a general discharge.

3.  The applicant states he was immature and made a bad mistake.  He served his time and has been embarrassed with himself for 47 years.

4.  The applicant’s military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.

5.	The applicant was born on 3 April 1928.  He was inducted into the Army on 30 November 1950.  He arrived in Korea on 14 October 1951.

6.  On 15 September 1952, in a common trial with one other defendant, the applicant was convicted by a general court-martial of wrongfully possessing .247 grams, more or less, of heroin.  He was sentenced to confinement at hard labor for 2 years, to forfeit all pay and allowances and to be dishonorably discharged.  (No previous convictions had been considered.  In his recommendation to the approving authority, the Staff Judge Advocate had noted that the applicant had a “clear record” and cooperated with authorities.  He also noted that the other defendant, who was sentenced to 3 years confinement at hard labor, had had two prior court-martial convictions.)

7.  On 31 October 1952, the U. S. Army Board of Review affirmed the findings and the sentence.

8.  On 24 February 1953, the U. S. Court of Military Appeals denied the applicant’s petition for a grant of review.

9.  On 17 March 1953, the applicant was discharged, with a dishonorable discharge, pursuant to his court-martial sentence.  He had completed 1 year,      7 months and 15 days of creditable active service and had 246 days of lost time (confinement time).

10.  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.

11.  On 20 January 1999, a Federal Bureau of Investigation (FBI) name check revealed that the applicant has no FBI record.

CONCLUSIONS:

1.  From a purely legal standpoint, the applicant’s trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  While the conduct which led to the applicant’s separation cannot be condoned, the Board notes that he had had no previous disciplinary actions taken against him and his conduct for the past 46 years has been unblemished.

3.  Although the applicant failed to apply to this Board within the time required, it would nonetheless be fair and compassionate at this point in time to recommend the upgrade of his dishonorable discharge to a general discharge under honorable conditions.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was given a general discharge from the Army on 17 March 1953, pursuant to his sentence by general court-martial.

2.  That the individual concerned be issued a General Discharge Certificate from the Army of the United States, dated 17 March 1953, denoting a general discharge in lieu of the dishonorable discharge now held by him.

3.  That the individual concerned be issued a new DD Form 214 reflecting the aforementioned corrections.

BOARD VOTE:  

RWG____  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  CLG_____  LLS_____  DENY APPLICATION

		Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998012217	
SUFFIX		
RECON		
DATE BOARDED	19990128	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19530317	
DISCHARGE AUTHORITY	AR 615-364	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.