PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           7 June 2000                   
	DOCKET NUMBER:   AR1999033129

	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. Robert J. McGowan		Director
Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. James P. Stueve		Member	
	Mr. Edwin Castle		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 Bad Conduct Discharge (BCD), issued as the result of a conviction by a general court-martial, be upgraded to an Honorable Discharge.

3.  The applicant states that he is 62 years old [in April 1996] and that he regrets the mistakes he made in his youth.  He states that he was young, only had a 9th grade education, and was having family problems and a medical emergency with his wife.  He asked for help from his chain of command, but no one would help him, so he went AWOL.  He adds that he has lived an honorable life, having been married for more than 40 years and having raised six children.  He has been a good citizen and a good person and he is extremely sorry for the past.  He asks for clemency.  In support of his application, he submits: a DD Form 293, Application for the Review of Discharge or Dismissal; a copy of his BCD Certificate; a copy of his DD Form 214, Report of Separation; a copy of the court-martial review decision by the Board of Review; a copy of a letter from his wife; and copies of letters of support from his community.

4.  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the record of his trial by court-martial and from alternate sources.

5.  The applicant was born in Council Bluffs, Iowa on 7 August 1934.  The record indicates that he was arrested for breaking and entering on 5 and 6 May 1953.  He was tried and convicted in civil court and sentenced to 90 days in jail.  Later he was arrested for robbery and enlisted in the Regular Army on 25 January 1954 in lieu of trial by civil authorities.  At the time of his enlistment, he was married, had a 9th grade education, and was working in a laundry in Omaha, Nebraska.  He was sent to Fort Leonard Wood, Missouri and assigned to Company B, 92nd Armored Infantry Battalion.

6.  Disciplinary infractions and multiple periods of AWOL marked the applicant’s military career.  He was convicted by a special court-martial on 13 August 
1954 for being AWOL from 10-27 May 1954 and 26 June to 27 July 1954.  His punishment included confinement at hard labor for 4 months and partial forfeiture of pay and allowances.  He was released from confinement on 21 November 1954 and promptly went AWOL again from 24 November 1954 to 9 January 
1955 when he was apprehended and returned to military control.  He was tried and convicted by a general court-martial and sentenced to confinement at hard labor for 6 months, forfeiture of all pay and allowances, and a BCD.

7.  The applicant was sent to the Branch United States Disciplinary Barracks, Fort Crowder, Missouri, where he served his sentence to confinement.  His BCD was executed on 2 May 1955.  He had 3 months and 21 days of creditable active Federal service and 352 days of lost time due to AWOL and confinement.

8.  In the processing of this case, a criminal background check was completed by the Federal Bureau of Investigation.  The applicant's record, as compiled by the FBI, indicates one arrest and conviction in September 1955 for assault 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, poorly educated, and somewhat immature when he committed the offenses of AWOL.  Faced with family problems in Omaha, he sought assistance from his chain of command at Fort Leonard Wood and, when help was not immediately forthcoming, he went AWOL.  His conviction and discharge were effected in accordance with applicable law and regulations; however, his punishment of 6 months’ confinement and a BCD appears overly harsh by current standards.

2.  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 educational level at the time of offense, his reason for absenting himself, the harsh punishment received, and his good post service conduct for 45 years justifies mitigation.

3. It would, therefore, be unjust and inequitable, after 45 years, to continue to cause the applicant to suffer the stigma of a BCD because of a period of AWOL.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by voiding the BCD now held by the individual concerned and by issuing to him a general discharge, dated 2 May 1955.

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

BOARD VOTE:  

___ec___  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

__mkp__  __jps____  ________  DENY APPLICATION

		__Margaret K. Patterson__
		        CHAIRPERSON

INDEX

CASE ID	AR1999033129	
SUFFIX		
RECON		
DATE BOARDED	20000607	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19550502	
DISCHARGE AUTHORITY	AR 615-364	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DASA	
ISSUES         1.	105.0000	
2.	110.0000	
3.		
4.		
5.		
6.