IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150012944 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150012944 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150012944 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 dishonorable discharge, following a conviction by a court-martial be upgraded to an honorable discharge due to a full and unconditional Presidential pardon. 2. The applicant essentially states he applied for and was granted a full and unconditional Presidential pardon from President Richard M. Nixon on 23 December 1971. Since his discharge, he has been an upstanding member of the community, attending church with his family, and has not been in any type of legal trouble. He had an honorable period of service from 30 January 1945 to 22 November 1945. He reenlisted on 23 November 1945 and shortly thereafter, he made the biggest mistake of his life. He was then and is now remorseful for the mistake he made during his second enlistment. While a prisoner, he was a model inmate and was released early by the Army Clemency Board. 3. The applicant provides a: * Honorable Discharge Certificate * Presidential Pardon, dated 23 December 1971 * Letter from The U. S. Attorney General, dated 6 January 1971 * Dishonorable Discharge (DD) Certificate 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 record is not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973. It is believed that some of the applicant’s records were lost or destroyed in that fire. This case is being considered using the available remaining records and other documents provided by the applicant. 3. On 30 January 1945, the applicant enlisted in the Regular Army. On 22 November 1945, he was honorably discharged and immediately reenlisted on 23 November 1945. 4. The applicant’s available records state that he had a prior conviction at a summary court-martial (SCM) for failure to report to a formation and was punished under the 104th Article of War for creating a disturbance in the company area. 5. On 25 March 1947 the applicant was tried by a general court-martial (GCM) and he was sentenced to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for 3 years. 6. GCM Orders Number 23, issued by Headquarters, United States Forces (USF), Austria, dated 11 April 1947, shows the applicant pled not guilty, but was found guilty to the following charges: a. Violation of the 94th Article of War – * on or about 29 November 1946, in Vienna, Austria, wrongfully and knowingly sold approximately two tons of coke [coal briquettes] of the value of about $36.96 property of the United States furnished and intended for the military service thereof * on or about 29 November 1946, in Vienna, Austria feloniously took, stole and carried away approximately two tons of coke of the value of about $36.96 property of the United States furnished and intended for the military service thereof b. Violation of the 96th Article of War – On or about 29 November 1946, without authority, wrongfully took and used a 2 and1 1/2 ton 6x6 truck, of value of more than $50.00, property of the United States. 7. The Chief of Military Justice recommended that the sentence be approved and that the DD be suspended until the applicant’s release from confinement. 8. On 11 April 1947, the GCM Convening Authority approved the sentence and ordered that it be executed but the execution of that portion thereof adjudging the DD would be suspended until the Applicant’s release from confinement. 9. GCM Orders Number 260, issued by Headquarters First Army, Governors Island, NY, dated 17 July 1947, shows the applicant was placed in confinement pursuant to GCM Orders Number 24, issued by Headquarters, United States Forces (USF), Austria, dated 11 April 1947. 10. Data for First Clemency Consideration, dated 6 October 1947, shows the applicant was recommended by the Commandant for clemency, but The Judge Advocate General recommended remission of his sentence in excess of one and one-half years instead of clemency. 11. On 14 November 1947, by order of the Secretary of War and by direction of the President, the applicant’s sentence at his GCM in excess of one and one-half years was remitted by the Army Clemency Board. 12. By order of the Secretary of the Army, the applicant’s parole was approved effective on or about 9 March 1948; however, clemency was disapproved. 13. An undated memorandum of facts that appears to have been prepared in response to the applicant’s request for a Presidential pardon, bearing the signature block of The Adjutant General, stated the applicant was released from confinement pursuant the expiration of his sentence and was issued a DD Certificate on 16 March 1948. 14. On 23 December 1971, by the direction of the President of the United States, the applicant was granted a full and unconditional pardon. REFERENCES: 1. 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. 2. On its website, the Department of Justice has published pardon information and instructions. Section 6 (pardon of a military offense) states, “Pardon of a military offense will not change the character of a military discharge. An upgrade or other change to a military discharge may only be accomplished by action of the appropriate military authorities.” DISCUSSION: 1. The evidence of record shows the applicant's trial by a GCM was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the final approved discharge appropriately characterized the misconduct for which he was convicted. 2. A Presidential pardon of a court-martial conviction does not mandate ABCMR to change the characterization of military service, or that the applicant is automatically entitled to an upgrade of his DD by virtue of the pardon. As a matter of clemency, the ABCMR should consider any relevant information, including the reasons stated in the pardon that may have led to the granting of the pardon. The Board should additionally consider any relevant information concerning the individual since the pardon was granted by President Nixon in 1971. 3. The applicant's entire record of service was considered, including his prior SCM, his prior HD, his conduct as a model inmate that the time of his military incarceration, his Presidential pardon, and his statement of post-service conduct. 4. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012944 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012944 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2