IN THE CASE OF: BOARD DATE: 2 January 2014 DOCKET NUMBER: AR20130006711 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 general court-martial conviction be overturned. 2. The applicant states: * his felony charge for larceny should be removed from his military records because the decision made on 16 September 1998 stated all Department of the Army records related to his case would be corrected * he wants to clear his record 3. The applicant provides a copy of the Department of the Army letter, dated 16 September 1998. 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 complete military records are not available for review. However, information was obtained from reconstructed personnel records and the records provided by the applicant. 3. Information obtained from ABCMR proceedings (Docket Number AC97-10304) shows: a. he enlisted in the Regular Army on 18 July 1950. b. he arrived in Korea on 27 January 1951. He received the Combat Infantryman Badge and he was evacuated from Korea for anxiety neurosis. c. on 10 September 1951, he was convicted by a summary court-martial of failure to repair and having an unclean uniform. 4. On 12 January 1952, he was convicted by a general court-martial of stealing 11 blankets. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for 2 years. On 16 January 1952, the convening authority approved the sentence. 5. On 29 February 1952, the Office of The Judge Advocate General, Board of Review, affirmed the findings of guilty and sentence. 6. On 9 April 1952, the convening authority ordered the dishonorable discharge executed. 7. His DD Form 214 (Report of Separation from the Armed Forces of the United States) is not available. 8. On 16 September 1998, the ABCMR upgraded his dishonorable discharge to a general discharge. The ABCMR recommendation states that all of the Department of the Army records related to this case would be corrected: a. by showing that clemency was warranted and that the individual concerned was discharged on 16 January 1952 with a general discharge, under honorable conditions; and b. by issuing to him a general discharge certificate, dated 16 January 1952, in lieu of the dishonorable discharge certificate of the same date now held by him. 9. He was issued a certificate in lieu of lost or destroyed discharge on 9 March 1999 which shows he was discharged under honorable conditions (general) on 16 January 1952. 10. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his felony charge for larceny should be removed from his military records because the ABCMR decision made on 16 September 1998 stated all Department of the Army records related to his case would be corrected. However, evidence shows on 16 September 1998, as a matter of clemency, the ABCMR corrected his military records to show he was discharged on 16 January 1952 with a general discharge. 2. By law, this Board cannot disturb the finality of a court-martial conviction, and the applicant has not established a basis for granting clemency. Therefore, 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) AR20130006711 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130006711 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1