PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 July 2002
	DOCKET NUMBER:   AR2002072471

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Thomas Lanyi		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 and that his Report of Separation, DD Form 214, be amended to show his date of birth as 2 July 1930.

3.  The applicant states that black soldiers were treated with prejudice.  He received unjust, racist treatment before and during his trial.  As supporting evidence he provides his DD Form 214; a 28 July 1953 letter from The Judge Advocate General to Congressman Kirwan; a 29 July 1953 letter from Congressman Kirwan,to the applicant’s sister; a Certificate of Appreciation dated 1 November 1992; a Reference Card, WD AGO Form R-5297; his parole orders; and an extract from Parade Magazine highlighting a short review of the book, American Patriots:  The Story of Blacks in the Military from the Revolution to Desert Storm.

4.  The applicant’s military records were lost or destroyed in the National Personnel Records Center fire in 1973.  Information contained herein was obtained from the Record of Trial and from alternate sources.

5.  The applicant as inducted into the Army on 3 April 1951.  Around March 1952, he arrived in Korea where he served with the Heavy Tank Company, 32d Infantry.  He was awarded the Combat Infantryman Badge.

6.  On 14 December 1952, the applicant was awakened at 11:45 p.m. and told to walk guard post number 4 until 1:30 a.m.  He had already pulled a two-hour shift from about 5:30 p.m. to about 7:30 p.m. earlier that evening.  About 12:30 a.m., the officer of the day and the sergeant of the guard noticed that the stove on a parts truck was burning.  When they went to the truck to turn it off, they found the applicant lying on the floor, sleeping.  He was charged with sleeping on post and tried by a general court-martial on 21 January 1953.  He was represented by counsel and was present but elected not to take the witness stand himself.  Two sergeants appeared as mitigation witnesses for the applicant, both testifying that he always performed his duties to the fullest extent and was a good soldier.  The applicant made a statement through his counsel.  Counsel acknowledged that sleeping on post was an offense which was considered very serious in that combat zone; however, he pointed out that the offense occurred in a reserve area and that the applicant had a previously clean slate.  

7.  Maximum punishment for the offense of sleeping on post was a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for life.  The applicant was sentenced to a dishonorable discharge, a forfeiture all pay and allowances, and confinement at hard labor for four years.  The sentence was approved but the execution of that portion adjudging dishonorable discharge was suspended until the applicant’s release from confinement or until completion of appellate review, whichever was the later date.  

8.  On 31 March 1953, the Board of Review, U. S. Army, affirmed the findings    of guilty and the sentence.  The applicant petitioned for a Grant of Review on      5 June 1953.  On 13 July 1953, the petition was denied by the U. S. Court of Military Appeals.

9.  On 5 October 1953, the applicant was denied restoration to duty and clemency.  On 11 June 1954, restoration to duty and clemency was disapproved again but release on parole was approved effective on or after 18 July 1954.  On 31 May 1955, clemency was approved and the unexecuted portion of the sentence to confinement, effective on 20 July 1955, was remitted.

10.  Several documents in the Report of Trial show the applicant’s date of birth as 2 July 1930.

11.  On 20 July 1954, the applicant was discharged with a dishonorable discharge pursuant to his sentence by court-martial.  He had completed 1 year,  9 months, and 9 days of creditable active service and had 556 days of lost time (confinement time). Item 10 shows his date of birth as 5 July 1930.

CONCLUSIONS:

1.  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 this requirement.

2.  Trial by court-martial was warranted by the gravity of the offense, which was committed in a combat zone, charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  The conviction and recommended sentence received appropriate legal reviews and were not found to contain administrative or legal errors to change the ruling of that court.

3.  There is no evidence in the available records or in the applicant’s supporting documentation to demonstrate that he was the victim of racial prejudice.

4.  If the applicant has an interest in applying for a Presidential Pardon, he may write directly to the Pardon Attorney, 4th Floor, 500 First Street, NW, Washington, DC 20530.

5.  There appears to be an error on the applicant’s DD Form 214 with regard to his date of birth.  Several documents in the Report of Trial show his date of birth as 2 July 1930, not 5 July 1930 as shown on his DD Form 214.

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

RECOMMENDATION:

1.  That the applicant’s DD Form 214, item 10 be amended to show his date of birth as 2 July 1930.

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

BOARD VOTE:  

__AAO__  __KAH___  ___TL___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Arthur A. Omartian   _
		        CHAIRPERSON

INDEX

CASE ID	AR2002072471	
SUFFIX		
RECON		
DATE BOARDED	2002/07/30	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PARTIAL GRANT	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.	100.00	
3.		
4.		
5.		
6.