PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            7 December 2000
	DOCKET NUMBER:   AR2000043196

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. John P. Infante		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, in effect, that his dishonorable discharge (DD) be upgraded to an honorable discharge (HD) and that the reason for his discharge be changed to good of the service.   

3.  The applicant states, in effect, that over thirty years ago he did something he is totally ashamed of and he has suffered the humiliation, degradation, and guilt associated with this action ever since.  He went absent without leave (AWOL) from the Army and was convicted of desertion by a general court-martial.  He comments that it was not wartime at the time but the fact remains that he went AWOL.  He indicates that if could relive this period of his life this is something he would undo.  He claims that he believes he was a good soldier but his age, background, along with the circumstances he faced in his unit in Germany all contributed to his becoming a bitter person.  

4.  In his statement to this Board he expands on his background and the hardships he faced as a child, which included abuse by his mother, and his being placed in an orphanage and being assigned to many different foster homes.  He refers to his joining the Army as the best thing that happened in his life.  He also alludes to his being made an acting corporal (Cpl) with a promotion to private first class (PFC) shortly after his training which also instilled him with a strong sense of pride.  In addition, he refers to the feeling of accomplishment and pride he felt when he was selected to be a tank commander and to train others.  

5.  He claims his downward spiral began after he was assigned to Germany where he began to drink excessively and where upon his return to Garrison after spending some four weeks on maneuvers he ended up going out and over indulging which resulted in his returning to post some 12 hours late.  He was given a summary court-martial and reduced to SP4.  Then because his unit wanted him to continue to be a tank commander, they made his an acting sergeant (SGT).  This he claims resulted in his being bitter over the reduction, which he thought was too harsh and undeserved given his performance of duty.  

6.  Upon his rotation back to the United States, after completing over four years of honorable service, while home on leave he became involved with friends of questionable character.  He states that he ended up not returning and instead elected to remain home and party with his new friends.  

7.  He claims that during this time he continued to believe that at some point he would return and resume his service.  At this point he met his future wife and her family, who were stable and loving people.  They were married and he told his wife that at some point he would have to return to service.  She then became pregnant and he didn’t know what to do.  He could not bear telling his wife and her family that he was AWOL because he believed they would not understand and this began an extended period of procrastination on his part. 
8.  He began discussing his return to the Army with his wife and explaining bits of his situation and she began to support his procrastination.  Their son was born in January 1965 with multiple defects which were the result of his contracting German Measles and his wife convinced him he should remain home with her and go to work and care for their child, which he elected to do.  As time went by he became more afraid to return because of the consequences he would face and ultimately reality came back into his life when Federal Bureau of Investigation agents apprehended him at his work place. 

9.  He remembers the court-martial proceedings that resulted after his return and he and his wife continue to believe his punishment was too harsh.  He fully expected to be punished for his actions but based on his honorable service he never expected to receive a DD and to be confined at Fort Leavenworth.  This punishment was his worse nightmare.  While serving his sentence at Fort Leavenworth he received his High School General Education Development (GED) Diploma and completed over 800 hours of training in carpentry.  Based on his experience as a steeplejack he was selected to teach other prisoners how to assemble rigging and paint bars on the outside of the prison with very little security, which made him still feel like a good trustworthy soldier.  

10.  Subsequent to his release from confinement and his DD, the applicant claims that he has faced a long and guilt ridden road, but thanks to his family and God in his life, he has stability and so much to be thankful for.  What still bothers him after all this time is his DD.  His purpose in requesting this relief is too relieve the guilt and shame that he has harbored over the years.  In seeing the young men and women serving their country over the years in places like Vietnam and Iraq, gives him an even greater sense of despair knowing how wrong he acted when he was young.  His hope and prayer is that he can be over this guilt he has felt and that his honorable service can be recognized, which will allow him to tell his children and grand-children that he was a good solider.  

11.  Included with his application, are sixteen character reference letters from employers, friends, religious pastors, religious association leaders, and his wife.  They statements all allude to the applicant’s outstanding post service conduct, his extensive contributions to his community through his hard work, community service and involvement, and his accomplishments as a good husband, father, and neighbor. 

12.  The applicant’s counsel states, in effect, that the applicant had performed over 38 months of exemplary service and that he in fact received an honorable discharge, dated 23 August 1961, based on his immediate reenlistment.  Counsel contends that the applicant’s misconduct was related to one minor disciplinary incident.  

13.  Counsel contends that a missing bed check infraction, instead of being resolved through nonjudicial punishment (NJP) as it would be under current standards, ended in his being tried and convicted by summary court-martial.  This course of action was ordered by the chain of command and was not requested or demanded by the applicant.  He was sentenced to be reduced in rank from specialist five/E-5 (SP5) to private/E-2 (PV2).  Counsel also claims for this type of offense his punishment was too harsh under today’s standards.  Under current standards his punishment would likely be to perform some extra duty and a minimal fine or forfeiture.  Counsel claims the applicant’s problems began subsequent to this harsh punishment and were the result of his bitterness at the reduction action.  

14.  Counsel requests the Board show compassion and leniency when considering the applicant’s case and consider the fact that he was an excellent soldier for more than three years and that even while AWOL he kept his military uniform and fully intended to return voluntarily at some point.  In addition, counsel comments that the fact that the applicant was a model prisoner while serving his sentence at Fort Leavenworth, Kansas should be considered.  Further, his outstanding post service conduct and the fact that he is a dedicated community leader and family man should be considered by the Board in its deliberations.  

15.  The applicant’s military records show that upon his reenlistment on 
24 August 1961 he began the period of service under review.  At the time of this reenlistment he had already completed 2 years, 1 month, and 3 days of honorable service and attained the rank of SP5.  There is a Department of the Army (DA) Form 214 (Armed Forces of the United States Report of Transfer or Discharge) on file which documents this period of honorable service.  

16.  The applicant’s Enlisted Qualification Record (DA Form 20) indicates that during his tenure in service he earned the Army Good Conduct Medal (AGCM) for his three year period of service from 21 July 1959 through 20 July 1962.  This award was codified in General Order Number 25, dated 27 September 1962, issued by the 3rd Medium Tank Battalion, 35th Armor Regiment, Mannheim, Germany.  

17.  The applicant’s service record contains evidence of only one disciplinary infraction prior to the AWOL related misconduct which led to his discharge.  As a result of this one incident of missing bed check and being AWOL for 12 hours, the applicant was tried and convicted by summary court-martial on 20 December 1962.  His sentence included a reduction in rank from SP5 to SP4.  

18.  On 8 February 1964, the applicant was declared AWOL as a result of not reporting to duty at Fort Knox, Kentucky.  He was dropped from the rolls as a deserter on 29 September 1964 and remained away until being apprehended by the FBI and returned to military control on 16 September 1965.  

19.  On 29 October 1965, the applicant was tried and convicted by a general court-martial of being AWOL, in desertion, from 8 February 1964 to 
16 September 1965.  The resultant sentence included a reduction in rank to PV1, a forfeiture of all pay and allowances, confinement at hard labor for 18 months, and a DD.  The court-martial findings and sentence was affirmed by the 
DA Board of Review on 17 June 1966.  

20.  Upon his release from confinement, the applicant was dishonorably discharged pursuant to his court-martial sentence after completing 2 years, 
6 months, and 27 days of creditable active service of the enlistment under review and a total of 4 years and 8 months, of active military service.  In addition, the applicant had accrued a total of 791 days of time lost due to AWOL and confinement. 

21.  Army Regulation 635-104, in effect at the time, provided the policy and procedure for separating enlisted members for desertion related misconduct as mandated in a properly executed court-martial sentence.  

CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant was adjudged guilty by general court-martial and that the sentence was approved by the convening authority.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process and this Board is only empowered to change a discharge if clemency is determined to be appropriate.  

2.  The Board noted the contentions of the applicant and his counsel that given the honorable nature of the preponderance of his military service his receipt of a DD is too harsh under current standards and finds this claim has merit.  

3.  Further, the record clearly shows that the applicant’s post service conduct has been outstanding and his positive contributions to his community have been significant and many.  In addition, there is no doubt he has already suffered immensely serious consequences for his AWOL related misconduct.  He first served the confinement portion of his court-martial sentence and he has also had to live with the negative impact and stigma of his DD for the past 30 plus years, which included a significant loss of veterans benefits.  Given these factors, the Board concludes that clemency is warranted in this case.  

4.  In the opinion of the Board, forcing the applicant to continue to live with the shame associated with his DD and unfairly denying him earned benefits related to his over four years of honorable service at this time would be excessive and unjust punishment given the solely military nature of his offense. 

5.  The Board is convinced that the applicant’s extended AWOL related misconduct did diminish the overall quality of his service below that meriting a fully honorable discharge.  However, in recognition of the honorable nature of the preponderance of his military service coupled with his outstanding post service conduct and accomplishments, the Board determines that an upgrade of his discharge is warranted at this time.  

6.  Therefore, in the interest of justice, equity, and compassion, the Board concludes that clemency should be granted in the form of an upgrade of the applicant’s discharge to general, under honorable conditions.  Conversely, the Board finds neither an equity nor propriety basis that would justify a change to either the reason or authority for the applicant’s discharge.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the applicant was issued a general, under honorable conditions discharge on 8 August 1966, in lieu of the DD of the same date he now holds.  

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

BOARD VOTE:  

__jpi____  ___ewl__  ___rvo __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.__
		        CHAIRPERSON

INDEX

CASE ID	AR2000043196	
SUFFIX		
RECON		
DATE BOARDED	2000/12/07	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1966/08/08	
DISCHARGE AUTHORITY	AR 635-204	
DISCHARGE REASON	Court-Martial	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189	121.0000	
2.		
3.		
4.		
5.		
6.