BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008419 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 BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008419 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. BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008419 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, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision, as promulgated in Docket Number AC97-10950, on 1 April 1998. Specifically, he requests an upgrade of his bad conduct discharge. 2. As a new argument the applicant states, in effect: a. He was involved in a vehicle accident while returning from leave. Due to the collision, he was late returning to his unit. Immediately upon checking in, he was arrested for being absent without leave (AWOL). He was court-martialed, found guilty, and sentenced to six months in the stockade. While in the stockade, he received a "Certificate of Award" for helping a guard that was attacked by another prisoner. His sentence of 6 months was reduced to 90 days and he was released. b. When he returned to his unit, he submitted several requests to transfer back to Korea because he had married a Korean woman while stationed there. His requests were denied. Being young and hot-headed, he did a very foolish thing. He requested personal property from some friends and asked them to report their property as missing. The missing property was found in his possession. He was ultimately court-martialed, given a bad conduct discharge, and sentenced to 1 year of confinement at Fort. Leavenworth. He just wanted to be out of the Army so that he could be reunited with his wife. 3. The applicant provides no additional evidence in support of his request. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR, in Docket Number AC97-10950, on 1 April 1998. 2. The applicant provides a statement that was not previously considered and now warrants consideration by the Board. 3. The applicant's complete military records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 4. The applicant enlisted in the Regular Army and entered active duty on 26 August 1952, at the age of 18. 5. On 11 January 1956, the applicant was convicted by a general court-martial of six specifications of larceny. His sentence consisted of discharge from the service with a bad conduct discharge, confinement at hard labor for one year, and forfeiture of all pay and allowances. 6. General Court-Martial Order Number 106, issued by Headquarters, Fort Leavenworth, Kansas on 10 February 1956, shows the sentence was approved and affirmed. 7. His discharge packet is not available for review. However, his record contains a DD Form 214 (Report of Separation from the Armed Forces of the United States) that shows he was discharged on 2 March 1956, in the rank/grade of private/E-1, under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge), paragraph 1b, as a result of court-martial. His DD 214 further shows he was issued a bad conduct discharge. REFERENCES: 1. Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges. Paragraph 1b stated an enlisted person would be separated with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 2. Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 clearly inappropriate. b. Paragraph 3-7b 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. 3. 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: 1. The applicant's request for an upgrade of his bad conduct discharge was carefully considered. The evidence of record shows he was convicted by a general court-martial of multiple offenses of larceny, in violation of the Uniformed Code of Military Justice. 2. The applicant contends his discharge should be upgraded because he was young and hot-headed at the time of his service. Records show that he was 21 years of age at the time of his offenses. However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their periods of military service. 3. The applicant was convicted by general court martial. The court sentenced him to a forfeiture of pay, confinement, and a bad conduct discharge. His trial by general court martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and his discharge appropriately characterized the misconduct for which he was convicted. 4. Any redress by the ABCMR of the finality of a court-martial conviction is prohibited by law. The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, clemency in the form of a general discharge or honorable discharge is not warranted in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008419 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008419 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2