PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 July 2002
	DOCKET NUMBER:   AR2002070855

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		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 a general, under honorable conditions discharge (GD).

3.  The applicant states, in effect, that he went absent without leave (AWOL) after being treated unfairly by his commanding officer.  He claims that he has paid his debt for going AWOL, and that he received a bad conduct discharge (BCD), but was instead issued a DD certificate.  He further states that his going AWOL was wrong, but his receiving DD certificate was a mistake.  In support of his application, he submits a copy of his Certification of Military Service (NA Form 13038), published by the National Personnel Records Center (NPRC), National Archives and Records Administration (NARA), St. Louis, Missouri, dated 
18 October 2001.

4.  The applicant's military records were lost or destroyed in a fire at the National Personnel Records Center (NPRC) in 1973.  The information herein was gleaned from a copy of NA Form 13038, dated 18 October 2001, published by the NPRC, NARA, and the record of trial by general court-martial, dated 27 August 1958.

5.  The NA Form 13038 confirmed that the applicant entered the Regular Army on 16 July 1956, and that he continuously served on active duty until being dishonorably discharged on 11 September 1958.  This document also shows that on the date of his discharge, the applicant held the rank and pay grade of private/E-1.  

6.  On 27 August 1958, the applicant plead guilty to being AWOL from
28 January 1958 to 6 July 1958.  He was found guilty of this offense by a general court-martial and the resultant sentence included a forfeiture of all pay and allowances, a reduction to the rank and pay grade of private/E-1, confinement for one year, and a DD.  On 11 September 1958, the convening authority approved the sentence with a modification of the DD to BCD, confinement from one year to ten months, and ordered all but the BCD portion of the sentence to be executed.

7.  The applicant appealed to the United States Army Board of Review based on the grounds that the approved sentence was too harsh and excessive.  On 
6 November 1958, the United States Army Board of Review examined the record of trial and found it to be legally sufficient to support the findings of guilty and approved only so much of the sentence that provided for a BCD, total forfeitures of pay and allowances, and confinement at hard labor for six months.

8.  On 29 December 1958, the unexecuted portion of the sentence pertaining to the BCD was ordered executed, and on 11 September 1958, the applicant was separated accordingly.

9.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board for Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

CONCLUSIONS:

1.  The Board notes the contention of the applicant that his discharge should be upgraded because the reason he went AWOL was the unfair treatment of his commander, and that he has paid his debt for this offense by completing the confinement ordered in his general court-martial sentence.  However, the Board finds these factors are not sufficiently mitigating to warrant the requested relief.  

2.  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 punishment imposed.  However, in this case, the Board finds the evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations, and that his trial by court-martial was warranted by the gravity of the offense with which he was charged. 

3.  Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge received by the applicant subsequent to his appeal  appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service.  Therefore, the Board concludes that clemency is not warranted in this case.

4.  The evidence of record does confirm that the applicant ultimately received a BCD, as indicated in the court-martial record, and that his separation document incorrectly lists the type of discharge as a DD.  Therefore, the Board finds it would be appropriate to issue the applicant a corrected NA Form 13038 that shows the applicant received a BCD, in lieu of the DD listed in this document. 

5.  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 individual concerned received a BCD on 11 September 1958, in lieu of the DD of the same date he now holds; and by requesting NARA issue him a corrected NA Form 13038 that reflects this change.

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

BOARD VOTE:  

__RVO__  __RTD__  __KWL__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

					        ___Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2002070855	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/25	
TYPE OF DISCHARGE	 BCD	
DATE OF DISCHARGE	19580911	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON		
BOARD DECISION	Partial Relief	
REVIEW AUTHORITY		
ISSUES         1.	105.0100	
2.		
3.		
4.		
5.		
6.