IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150012632 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: 5 January 2017 DOCKET NUMBER: AR20150012632 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 to amend the decision of the Army Board for Correction of Military Records (ABCMR) set forth in Docket Numbers AC90-08397A on 20 May 1992, AR20040006627 on 14 April 2005, and AR20140017999 on 18 June 2015. _____________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: 5 January 2017 DOCKET NUMBER: AR20150012632 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, the brother of a deceased former service member (FSM), requests reconsideration of his previous request for an upgrade of the FSM's 1954 discharge, back or lost pay, all the medals he is authorized, "40 acres and a mule," GI Bill benefits, payment for time served through 1997 (sic), and insurance. 2. The applicant states: a. The FSM was his oldest brother. The FSM enlisted in the Army as soon as he was old enough. It was his brother's desire to help his sharecropper parents and his 20 sisters and brothers to live a better life. The FSM arranged to have monthly payments sent to his family although there is no record of this ever happening. His brother enlisted at 18 years of age in 1943. He was sent overseas immediately after basic training. He loved his new position and the uniform; he fought in three wars. He excelled in what he did as evidenced by his numerous awards and recognition including award of the Purple Heart, Bronze Star Medal, Combat Infantryman Badge, and several battle stars. b. The FSM planned to make the Army his permanent occupation as evidenced by reenlistment immediately upon the end of his first term of service. His brother reenlisted after his last period of overseas service in the rank of corporal. Everything went good until he returned to Fort Gordon, GA. Because of his outstanding record, he was assigned to train new recruits. His senior officers made it their business to make his life a living hell. One official would issue him an order and another official would issue him an entirely different order to be carried out at the same time. His brother stated "that is what broke the camel's back." Out of sheer frustration with his inability to be in two places doing two different things at the same time, he walked away. c. While at Fort Gordon, his brother was demoted to private, court-martialed, and was thrown out of the military without a final discharge. Records show he was recommended for clemency, but was denied after serving 6 months of hard labor. Without any additional paperwork he was discharged. His brother was denied Department of Veterans Affairs (VA) benefits until he was near death from cancer as a result of exposure to Agent Orange. He had three honorable discharges for service overseas, but he received nothing additionally until numerous requests yielded a dishonorable discharge in 1998. Prior to that time, he worked in Florida as a fruit picker on a corrupt farm that was the subject of a 60 Minutes documentary. After numerous appeals, his brother's dishonorable discharge was upgraded as demonstrated by his death in the VA hospital. Currently, that hospital has been unable to locate his brother's medical records with the exception of his death certificate. d. The FSM loved his country and he believes the FSM is entitled to an honorable discharge, back pay, 40 acres and a mule, his GI Bill benefits, pay for time served until his 1997 (sic) discharge, all service medals not received, and insurance. 3. The applicant provides the 2015 Army Board for Correction of Military Records (ABCMR) Record of Proceedings. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM's case by the ABMCR in: * Docket Number AC90-08397A on 20 May 1992 (character of service) * Docket Number AR20040006627 on 14 April 2005 (character of service) * Docket Number AR20140017999 on 18 June 2015 (pay and medals) 2. The applicant provides a new argument that warrants consideration by the Board. 3. The FSM was inducted into the Army of the United States on 30 September 1943. He was honorably discharged on 31 October 1945 for the purpose of immediate enlistment in the Regular Army (RA). He was later issued a Certification of Military Service for this period. 4. He enlisted in RA on 1 November 1945. He served in Japan from October 1945 to August 1948. The FSM was honorably discharged on 16 September 1948 for the purpose of immediate reenlistment. He was later issued a Certification of Military Service for this period. 5. He reenlisted in the RA on 17 September 1948. In March 1950, he returned to Japan and was assigned to the 76th Antiaircraft Artillery Battalion. He was honorably discharged on 18 September 1951 for the purpose of immediate reenlistment. He was later issued a Certification of Military Service for this period. 6. He reenlisted in the RA on 19 September 1951 and continued to serve in Korea for 15 months. He returned to the United States on 7 December 1951 and was assigned to Camp Gordon, GA. 7. The FSM was convicted by summary courts-martial on four separate occasions as follows: * 12 March 1952, for being incapacitated for proper performance of duties due to previous indulgence of intoxicating liquor; the court sentenced him to forfeiture of $50.00 pay * 6 November 1952, for breaking restriction; the court sentenced him to a reduction to pay grade E-3 and forfeiture of $50.00 pay * 11 February 1953, for breaking restriction; the court sentenced him to forfeiture of $65.00 pay and 1 month of confinement at hard labor * 17 March 1953, for being drunk and disorderly and breaking restriction; the court sentenced him to forfeiture of $65.00 pay and 1 month of confinement at hard labor 8. On 29 January 1954, the FSM was convicted by a general court-martial of being absent without leave from 3 August 1953 to 16 January 1954. The court sentenced him to a dishonorable discharge, forfeiture of all pay and allowances, and 6 months of confinement at hard labor. 9. After completion of all required post-trial and appellate reviews, the convening authority approved the FSM's sentence and ordered it executed. After serving his sentence, the FSM was discharged from the Army on 22 June 1954. 10. On 20 May 1992 (ABCMR Docket Number AC90-08397A), pursuant to the FSM's requests, denied the upgrade of his 1954 dishonorable discharge, but determined his military records should be corrected by: * issuing the FSM a Certification of Military Service for the periods of honorable service from 30 September 1943 to 31 October 1945, 1 November 1945 to 16 September 1948, and 17 September 1948 to 18 December 1951 * showing award of the Bronze Star Medal and all additional awards and decorations it appeared he was entitled to receive for his combat service during World War II and the Korean Conflict 11. On 15 December 1999, the ABCMR administratively closed the applicant's request for correction of the FSM's military records and advised him of the following: * the FSM would be issued a Certificate of Military Service for his prior honorable period of service (from 17 September 1948 to 18 September 1951) for which he did not have a certificate and an Honorable Discharge Certificate for that period * the Board could not change the finality of a court-martial pertaining to the FSM's dishonorable discharge * the FSM was not due back pay according to the Defense Finance and Accounting Service (DFAS) as no pay records were available which would indicate the FSM was not paid for the period from 1948 to September 1957 12. On 11 April 2005 (ABCMR Docket Number AR20040006627), the ABCMR denied the applicant's request for an upgrade of the FSM's dishonorable discharge. 13. ABCMR Docket Number AR20140017999, dated 18 June 2015, shows the applicant's request for payment of lost benefits and additional medals for the FSM was denied. 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 change a court-martial 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. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. AR 600-8-22 (Military Awards) prescribes the criteria for awards, decorations, badges, and unit awards. DISCUSSION: 1. With respect to an upgrade of the FSM's discharge: a. The available evidence shows the FSM was convicted by a general court-martial and he was sentenced to a dishonorable discharge. His discharge was affirmed and he was discharged accordingly on 22 June 1954. b. The FSM's record is void of evidence that shows his court-martial was unjust or inequitable. His conviction and discharge were affected in accordance with applicable laws and regulations in effect at the time and he was afforded due process with no evidence of any violations of his rights. c. Any redress by this Board of the finality of a court-marital conviction is prohibited by law. This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 2. The evidence does not show the FSM is entitled to any back or lost pay. None of the available records support a conclusion that the FSM is owed any additional pay. 3. With respect to the issuance of additional awards, there is no available evidence showing the FSM is eligible for any additional awards. In May 1992, the Board determined the FSM's records should be corrected to show award of the Bronze Star Medal and all additional awards and decorations that he was eligible to receive for his combat service during World War II and the Korean Conflict. At that time, it was determined the FSM was not eligible for any additional awards. The applicant has not provided evidence showing otherwise. 5. As for insurance, GI Bill benefits, and 40 acres and a mule: a. It is presumed the applicant means Servicemen's Group Life Insurance (SGLI), which was established in September 1965. This program was and is supervised by the VA and is not within the purview of this Board. However, the SGLI did not exist at the time of the FSM's military service. b. GI Bill benefits are administered by the VA and are not within the purview of this Board. c. At the end of the Civil War, Union leaders proposed redistributing land to former slaves. This led to the concept of "40 acres and a mule." The program was abandoned during President Andrew Johnson's administration. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012632 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012632 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2