PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           6 July 2000
	DOCKET NUMBER:   AR1999032285

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 an honorable discharge or a general under honorable conditions discharge.

3.  The applicant makes no statement in his behalf, but his Department of Veterans Affairs (VA) service officer submits a 1968 letter from a Warrick, Indiana, Circuit Court Judge explaining that the applicant was court-martialed in 1953 and received the maximum punishment for the theft and black marketing of government property--five blankets valued at $40.00 and a sweater valued at $4.80.  Since that time, the judge states, the applicant has returned home, married, raised a family and has been, in all respects, a good citizen.  He has no record of any kind since his release from military prison and his conduct has been exemplary, being active in civic and community affairs, and making generous contributions of his time and money to various worthwhile causes.  The VA service officer further attests to the applicant’s good character, stating that he went to school at Fort Leavenworth, Kansas, and was recognized for his accomplishments.  He also works as a dispatcher for the Warrick Country Sheriff’s Department and the State Highway Department.

4.  The applicant’s military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from documents submitted by the applicant.  An attempt was made to obtain the applicant’s record of trial from the Office of the Judge Advocate General, but there is no record on file at that office.

5.  The applicant enlisted on 6 February 1951 for a period of 3 years.  At the time of his enlistment, he was 19 years old and had an 11th grade education.  Upon completion of all required military training, he was sent to the Far East as a supply specialist.  He served in Korea during the Korean War and received the Korean Service Medal and the United Nations Service Medal.

6.  In January 1953, the applicant was assigned to the 8080th Army Unit, Tokyo Quartermaster Depot, Tokyo, Japan.  He was accused of stealing 2 blankets, valued at $8.00 each, on 21 January 1953 and of selling 3 blankets ($24.00) and 1 sweater ($4.80) on the black market.  On 24 April 1953, he was tried and convicted by a general court-martial and sentenced to confinement at hard labor for 18 months, forfeiture of all pay and allowances, and a dishonorable discharge.  He was transferred to the Branch U.S. Disciplinary Barracks, Lompoc, California, for service of his sentence to confinement.

7.  The applicant’s dishonorable discharge was executed on 3 August 1953 at Branch U.S. Disciplinary Barracks, Lompoc, California.  He had a total of 2 years, 2 months and 19 days of creditable service and 102 days of time lost due to confinement.

8.  In the processing of this case, a criminal background check was completed by the Federal Bureau of Investigation (FBI).  The applicant’s record, as compiled by the FBI, indicates no arrests or convictions since his separation from military service.

9.  The Military Justice Act of 1983 (Public Law 98-209) provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

CONCLUSIONS:

1.  The applicant was young, immature, and lacked a high school education when he committed the offenses of larceny and black marketing of government property valued at $28.80.  His conviction and discharge were effected in accordance with applicable law and regulations.

2.  The Board takes cognizance of the facts that the offense occurred in Japan while the Korean War was still in progress and that the applicant had a prior court-martial conviction.  Attempts were made to obtain the applicant’s record of trial of his general court-martial in order to determine whether aggravating factors existed to justify the harsh sentence imposed; no record could be found.

3.  While the Board cannot, by law, disturb the finality of a court-martial conviction, it can mitigate the punishment when deemed appropriate.  In this situation, the applicant’s age and education level at the time of the offense, the harsh punishment of 18 months’ confinement and a dishonorable discharge which he received, and his good post service conduct and community involvement for 47 years justifies mitigation.  The Board feels that the dishonorable discharge has served its purpose.

4.  It would, therefore, be unjust and inequitable, after 47 years, to continue to cause the applicant to suffer the stigma of a dishonorable discharge because of a petty larceny and black market offense.

5.  In view of the foregoing findings and conclusions, and in the interest of clemency, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the dishonorable discharge now held by the individual concerned and by issuing to him a general discharge under honorable conditions, dated 
3 August 1953.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

__cmf___  __emw__  __jpi____  DENY APPLICATION

		__Calvin M. Fowler___
		        CHAIRPERSON

INDEX

CASE ID	AR1999032285	
SUFFIX		
RECON		
DATE BOARDED	20000706	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19530803	
DISCHARGE AUTHORITY	AR615-364	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.