MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            7 June 2000    
	DOCKET NUMBER:   AR1999028667

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

	Mr. Carl W. S. Chun 		Director	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Stueve		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That his military records be corrected by upgrading his dishonorable discharge to an honorable discharge.

APPLICANT STATES:  In essence that he served his time on the front line in Korea.  He contends that during this period of time he developed a nervous condition which rendered him incapable of being able to fulfill his military obligation at the front line.  In support of his application, he submits: a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States); a copy of his general court-martial order; a copy of his Executive Grant of Clemency order with attachments; and a copy of his Certificate of Release from Parole, AGO Form 01124.

EVIDENCE OF RECORD:  The applicant’s records are incomplete and may have been partially destroyed in the National Personnel Records Center fire in 1973.  However, evidence of record available indicates that he was born on 21 March 1931 and enlisted in the Regular Army on 5 January 1951 for 3 years.  He was trained as an Infantryman and was assigned to duties in Korea.    

On 27 December 1951, the applicant was convicted, contrary to his pleas, of two specifications of violation of the Uniform Code of Military Justice (UCMJ).  The first specification was for a violation of Article 99, UCMJ, while being in the vicinity of Hayo-Dong, Korea, on 20 September 1951, in the presence of the enemy, was guilty of cowardly conduct, in that he wrongfully failed to join the forward elements of his company as it was his duty to do.  The second specification was for violation of Article 91, UCMJ, in that he received a lawful order from his noncommissioned officer to join the forward elements of his company and did, in the vicinity of Hayo-Dong, Korea, on 20 September 1951, willfully disobey this order.  His approved sentence included forfeiture of all pay and allowances, to be confined at hard labor for 8 years and to receive a dishonorable discharge.  There were no previous convictions considered.  

On 24 March 1952, a board of review, United States Army, affirmed the sentence.  On 29 April 1952, General Court-Martial Order Number 522, was issued by Headquarters, Camp Cooke, California, announcing that the sentence had been affirmed and that the dishonorable discharge was ordered executed. 

Also, on 29 April 1952, the applicant was discharged, with a dishonorable discharge, under the provisions of Army Regulation 615-364, by reason of conviction by court-martial.  He was credited with 8 months and 31 days of active service with 209 days lost time due to confinement.  He was awarded the Korean Service Medal with one bronze service star (denoting participation in one campaign in Korea) and the United Nations Service Medal.  However, he remained in Federal confinement.

On 4 November 1953, under the provisions of Article 74, UCMJ, the Secretary of the Army remitted that portion of confinement in excess of 7 years and thereby reduced his term of imprisonment by 1 year.  Further, on 4 June 1954, the applicant was released on parole.

Based on his petition for pardon, dated 21 January 1985, an Executive Grant of Clemency (also known as a Presidential Pardon) was issued by the Department of Justice on behalf of the President on 24 December 1987, which granted him a full and unconditional pardon.

The Military Justice Act of 1983 (Public Law 98-209) provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

A Presidential Pardon does not erase a court-marital conviction, rather it recognizes the recipient’s rehabilitation and good citizenship, and removes many of the legal disabilities flowing from it.  The pardon indicates to all Government agencies and officials the President’s intent to remove the stigma of the conviction.  Thus the Pardon restores the right to vote in Federal elections, to hold Federal office or to sit on a Federal jury.  The Pardon may also persuade States to issue licenses for professional practice and trade fields, often barred to individuals who are considered felons.  

Furthermore, a Presidential Pardon does not restore veteran benefits.  Determination of entitlement to veteran benefits rests with the Department of Veterans Affairs (DVA) operating within the confines of Federal statute and the established rules and regulations governing the operations of that agency.  The military Services are not empowered to grant veteran benefits.  Final determination of these entitlements still rests with the DVA. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s service records were partially destroyed in the National Personnel Records Center fire of 1973.  Information from his court-martial records indicate that the applicant wrongfully failed to do his duty by accompanying his unit into combat in the Korean War and willfully disobeyed an order from a noncommissioned officer in combat.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge, given the time and circumstances, appropriately characterizes the misconduct for which the applicant was convicted.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.  Regularity in the court-martial proceedings and the discharge process are presumed.

4.  Since the applicant failed to provide any documentary evidence to show that he suffered from or incurred a nervous condition which would have prevented him from serving on the front lines during the Korean War, there has been no basis established to grant even limited relief.

5.  The Board notes that the applicant was given an Executive Grant of Clemency in 1987 by the President of the United States.  This grant is commendable, but does not set aside the conviction by a court-marital, nor does it provide a basis for this Board to grant clemency.   

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __esc___  __jps ___  DENY APPLICATION

    Carl W.S. Chun
    Director, Army Board for Correction
    Director

INDEX

CASE ID	AR1999028667	
SUFFIX		
RECON		
DATE BOARDED	20000607	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1952 04 29	
DISCHARGE AUTHORITY	AR 615-364	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	105.0100	
2.	110.0000	
3.		
4.		
5.		
6.