PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            21 April 1999   
	DOCKET NUMBER:   AC96-07122
				   AR1998014162

	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. Calvin M. Fowler		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Gary F. Geraets		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 honorable.

3.  The applicant states he was not given due process, that the offense he committed did not deserve a dishonorable discharge and that as a soldier who was awarded the Silver Star in combat he deserves a break.

4.  The applicant’s military records show that he enlisted in the Regular Army on 24 July 1948.  

5.  The applicant was absent without leave (AWOL) from 19 – 23 July 1949.  There is no evidence he received any disciplinary action for this AWOL.

6.  The applicant arrived in Korea around October 1950 where he served as an infantryman and was awarded the Combat Infantryman Badge and the Silver Star. 

7.  On 20 January 1950, the applicant was convicted by a summary court-martial of wrongfully possessing a forged soldier’s permanent pass.  He was sentenced to perform hard labor without confinement for 2 weeks, to forfeit $35 pay for        2 months and to be reduced to Recruit E-1.

8.  On 8 April and 20 May 1950, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for being absent from his place of duty and for missing bed check, respectively..  

9.  The applicant was promoted to Sergeant, E-5 on 26 June 1951.  

10.  On 28 December 1951, the applicant was convicted by a general court-martial of wrongfully appropriating a jeep and then losing that jeep through neglect and of being AWOL from 11 through 16 October 1951 and from             26 October through 1 November 1951.  He was sentenced to receive a dishonorable discharge, to forfeit all pay and allowances, and to be confined at hard labor for 2 years.

11.  In the Staff Judge Advocate’s (SJA) review, the SJA noted that during testimony the applicant stated “I felt that I was getting a bum deal in the unit and felt in the mood for making this unauthorized trip.”   It also noted that a Sergeant First Class who had known the applicant for 3 years testified he was a “pretty nice fellow” and performed his duties in combat in an excellent manner at all times.  As to the sentence, the SJA noted that the applicant expressed a desire to have a chance to remove the dishonorable discharge adjudged by the court.  His excellent combat record showed he had at least one of the essential requisites of a soldier and with proper training to impress upon him the importance of discipline and order in the Army, it was believed his retention in the service would be warranted.  The SJA recommended that only so much of the sentence as provided for a dishonorable discharge, a forfeiture of all pay and allowances, and confinement at hard labor for 1 year be approved, but that the dishonorable discharge be suspended until released from confinement or until completion of appellate review, whichever was later.

12.  The applicant’s final approved sentence was to receive a dishonorable discharge (suspended until released from confinement or until completion of appellate review, whichever was later), to forfeit all pay and allowances, and to be confined at hard labor for 1 year.

13.  On 14 February 1952, the Board of Review, United States Army affirmed the findings of guilty and the sentence.

14.  On 7 April 1952, the applicant waived his right to petition the Court of Military Appeals for a grant of review.

15.  On 30 June 1952, the Commandant, U. S. Disciplinary Barracks, Lompoc, CA noted that in consideration of the applicant’s excellent prior record and the fact that he had previously indicated his desire for restoration, enlistment was recommended.  Remission of the unexpired portion of the sentence was also recommended.  Sentence was considered excessive in view of his excellent prior record and the nature of the offense.  His conduct in confinement had been excellent.  

16.  On 21 July 1952, the Classification Board noted that the applicant’s version of the circumstances surrounding the offenses was essentially the same as the evidence given at the trial.  He did further state that his squad was on an outpost where there was very little patrol contact with the enemy and that after the jeep was stolen, he and the driver spent 3 days looking for it.  He expressed to them that he did not desire enlistment as he preferred civilian life.  The board voted against restoration as the applicant did not desire it, he had a questionable motivation and had a low mental endowment.

17.  On 16 October 1952, the applicant was discharged, with a dishonorable discharge pursuant to his court-martial sentence, in pay grade E-1.  He had completed 3 years, 2 months and 20 days of creditable active service and had 269 days of lost time.

18.  Title 10, U. S. Code, section 1552, as amended, precludes any action by this Board which wold disturb the finality of a court-martial conviction.

CONCLUSIONS:
1.  The Board concludes that the applicant’s trial by court-martial was warranted by the gravity of the offenses charged and conviction and discharge were effected in accordance with applicable law and regulations.  However, the Board also concludes that, given the applicant’s prior good combat service, the sentence to a dishonorable discharge was too harsh.

2.  The Board believes that had the applicant expressed the desire to be restored to duty, the Classification Board would have approved his restoration.

3.  However, the applicant’s service was not fully honorable as evidenced by his prior court-martial conviction and UCMJ actions.

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 

     a.  showing that the applicant is separated from the service with a General Discharge Certificate on 16 October 1952;

     b.  issuing to him a General Discharge Certificate from the Army of the United States, dated 16 October 1952, in lieu of the Dishonorable Discharge Certificate of the same date now held by him; and

     c.  issuing to the individual concerned a new discharge certificate reflecting the aforementioned corrections.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__CMF__  __SK___  __GFG__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Calvin M. Fowler
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC96-07122/AR199814162	
SUFFIX		
RECON		
DATE BOARDED	19990421	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.