IN THE CASE OF: BOARD DATE: 4 DECEMBER 2008 DOCKET NUMBER: AR20080011380 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to a general or an honorable discharge. 2. The applicant states, in effect, that he was just recently informed that he could still request a review of his discharge. He also states, in effect, the reasons he believes his discharge is in error are contained in the brief submitted by counsel. 3. In support of his application, the applicant provides copies of a Summarized Record of Trial and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests, in effect, that the applicant's UD be upgraded. 2. Counsel states, in effect, that the 15-year time limit should be excused as the applicant was recently made aware that his special court-martial can be reviewed by the Board. He also states that the applicant pleaded "not guilty" and was sentenced by special court-martial on 25 January 1957 to confinement for four months and a forfeiture of $55.00 pay for four months. He further states, in effect, that the applicant contends that his discharge was inequitable due to the harshness of his sentence which by today's standards he could have received non-judicial punishment (NJP). The applicant argues his court-martial consisted of two captains, two lieutenants, and two trial counsels and should have had a trial judge as the lead officer and not a captain. The defense counsel moved for another court-martial as the convening authority already had a preconceived opinion of the accused's guilt and the convening authority was also the reviewing authority and the trial would be unfair to the accused. This motion was denied. 3. Counsel also states, in effect, that under direct examination Corporal (CPL) Sw______ testified that he posted the applicant at 0400 hours and under cross examination this corporal said he let the applicant go to eat at 0600 hours…he (the applicant) was told to go to chow and then return to the guard house. It is noted that CPL Sw________ was not in the same unit as the applicant and all the witnesses for the prosecution, except for Private First Class (PFC) Gap____, were from units other than the applicant's unit. Under direct examination First Lieutenant (1LT) Fo___ stated "at approximately 0400 hours I checked Post #4 and could not find the accused." This contradicts CPL Sw______'s statement that he posted the applicant at 0400 hours. 1LT Fo_____ then stated "it was 0500 by my watch when I arrived at Post #4." This also contradicts his original statement that he checked the post at 0400 hours. 1LT Fo______ further stated that he found the applicant after 0630 hours, clearly 30 minutes after the applicant's guard duty relief time. Master Sergeant (MSGT) Ho___ stated that he went to Post #4 at approximately 0520 hours and arrived at the motor pool between 0530 and 0535 hours, he never stated that he did not find the applicant, rather the Officer of the Day (OD) arrived with the applicant at approximately 0630 hours. 4. Counsel also states that PFC Ga_____ and Private Ro_____ appear to have the same testimony. They testified, "I noticed the accused in bed," "I saw the accused's face," and "I did not have a watch." In all testimony there appears to be a time span that is approximate, by all involved, even the applicant. There appears to be confusion as to the time span of the guard duty, 12 versus 24 hours. It appears that from the OD to the CPL of the Guard to the guards themselves and even the applicant stated, "it was getting light out and he figured he had walked his post for two hours and that he was not sure of the time." In the interest of justice, the applicant should have been given the benefit of doubt, as his command was not sure of the time and the duration of the post for that day. All times are approximate even by those that did have a watch. Counsel states the applicant's contention "that if his command did find him absent from his post, why was an alarm not sounded since security could have been breached and why were both 1LT Fo___ and MSGT Ho_____ looking for him in vehicles, instead of being concerned with a breach of security"? Counsel also reiterates the applicant's contention that based on the inequity issue, "a single incident of leaving his post before being properly relieved should have called for an NJP and not a Special Court Martial". Counsel further states that certainly an under other than honorable conditions discharge, which was administratively issued while the applicant was serving his court-martial sentence, was much too harsh for a single incident of leaving his post before being properly relieved. Counsel also states that the applicant requests that relief be granted and his honorable service of two years, 5 months, and 24 days of his 3-year enlistment be taken in account. 5. Counsel provides no additional documentation in support of the applicant's application. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant’s military records are not available for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed that the applicant’s records were lost or destroyed in that fire. However, the documentation submitted by the applicant contains sufficient evidence for the Board to conduct a fair and impartial review of this case. 3. The available evidence contained a copy of the applicant's DD Form 214 which shows he enlisted in the Regular Army on 2 September 1954 for 3 years. 4. The applicant submitted a Summarized Record of Trial, dated 25 January 1957, that contains a Charge Sheet, dated 15 January 1957, prepared by the Commander, 535th Engineer Company (Light Equipment), US Army. The applicant was charged with one specification of leaving his sentinel post before he was regularly relieved on 12 January 1957. On 17 January 1957, the charge was referred to trial by special court-martial. 5. The Summarized Record of Trial shows the applicant appeared before a special court-martial on 25 January 1957, with counsel, and he pleaded not guilty to the specified charge. The applicant's counsel's motion to have the applicant tried by another court-martial was denied. The record contains the testimony of all involved, to include the applicant. The applicant was found guilty, was sentenced to confinement at hard labor for four months, and a forfeiture of $55.00 pay per month for four months. It does not appear that the court-martial was the only reason for the discharge. On 6 February 1957, the convening authority approved the sentence and ordered its execution. 6. All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records. However, his DD Form 214 shows that he was discharged on 26 March 1957, in pay grade E-1, under the provisions of Army Regulation 635-208. The applicant's character of service was determined to be under other than honorable conditions and he was furnished an Undesirable Discharge Certificate. He was credited with 2 years, 5 months, and 24 days of total active service and 31 days of lost time due to confinement. 7. Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness), then in effect, provided in pertinent part, the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service. Individuals determined to possess undesirable habits and traits were discharged under this regulation. An undesirable discharge was normally issued. 8. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the policies and procedures for the separation of enlisted personnel. Paragraph 3-7a, provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate. 9. Army Regulation 635-200, paragraph 3-7b, also provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge. The applicant and counsel have not shown error, injustice, or inequity for the relief he now requests. He was properly discharged and they have not shown otherwise. 2. The evidence submitted by the applicant shows he appeared before a special court-martial, was found guilty, and was sentenced to confinement at hard labor for four months and a forfeiture of pay for four months. The evidence does not show the court-martial was the primary reason and authority for his discharge; however, it did contribute to his ultimate discharge. 3. All the facts and circumstances pertaining to the applicant's discharge are unavailable for review. The applicant’s record contains a properly constituted DD Form 214 which was authenticated by him. This document identifies the reason and authority for the applicant's discharge and the characterization of his service. In the absence of evidence to the contrary, Government regularity is presumed. It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights. 4. The applicant's and counsel's contentions were considered; however, they do not support an upgrade of his undesirable discharge. Without evidence to the contrary, it appears that the applicant's misconduct, in addition to the court-martial conviction, diminished the quality of his service below that meriting a general discharge or an honorable discharge. 5. In order to justify correction of a military record, the applicant must show, 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. 6. In view of the foregoing, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ___X____ ____X__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _________X_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20080011380 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080011380 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1