BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150012797 BOARD VOTE: __x_______ __x_____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150012797 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he received a general, under honorable conditions discharge. ___________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: 4 October 2016 DOCKET NUMBER: AR20150012797 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 an upgrade of his dishonorable discharge and a personal appearance before the Board. 2. The applicant states his dishonorable discharge should be changed based on the Presidential Pardon he received in 1977. 3. The applicant provides a Certification of Military Service and Presidential Pardon. 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 the cases 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. 2. The applicant's complete military records are not available to the Board for review. A fire destroyed approximately 16 million service members’ records at the National Personnel Records Center in 1973. It is believed his records were destroyed in that fire. However, there is sufficient documentation contained in a reconstructed record and that submitted by the applicant for the Board to conduct a fair and impartial review of this case. 3. The available records show the applicant enlisted in the Regular Army on 14 August 1950. The records contain: a. An Office of the Staff Judge Advocate memorandum, dated 16 June 1953, showing the applicant was charged with desertion on 31 December 1952 and was apprehended on 26 May 1953. There was a record of three previous convictions, two by special courts-martial for absence without leave (AWOL) of 56 and 35 days respectively, and one by a summary court-martial for refusal to jump from an airplane in flight. The memorandum reported that he completed basic training and went to Fort Benning, GA, to qualify as a parachutist and then returned to Fort Campbell, KY. Trial by general court-martial was recommended. b. General Court-Martial Order Number 85, dated 8 July 1953, showing he was convicted of one specification of being AWOL from 31 December 1952 to 26 May 1953. He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 2 years and 6 months. c. A partial record that appears to be related to a recommendation for clemency indicating the applicant, while serving with a medical unit, was required to help pick up the remains of a Soldier whose parachute had failed to open. After this, the applicant refused to jump, which led to conviction by a summary court-martial. He then had repeated periods of being AWOL. d. A Psychiatric Report, dated 8 July 1953, wherein the examining psychiatrist stated the applicant gave a history and a rather weak story of going AWOL. He diagnosed the applicant with an inadequate personality and found no mental or psychiatric contraindications to administrative disposition. 4. On 19 August 1953, the U.S. Army Court of Military Review affirmed the findings of guilty and reassessed the sentence. The approved and affirmed sentence included a dishonorable discharge and 2 years of confinement. 5. On 16 November 1953, the convening authority approved the applicant's sentence. 6. On 4 January 1954, the U.S. Army Court of Military Appeals denied his request for relief. 7. General Court-Martial Order Number 52, dated 19 January 1954, shows the convening authority affirmed the sentence and ordered it duly executed. 8. On 17 April 1954 and 7 October 1954, the Army Judge Advocate General did not recommend clemency. There is no record of the Army Clemency and Parole Board review and decisional documents. 9. He was discharged on 13 November 1954 with a dishonorable discharge. 10. His records also contain and he provided a Presidential Pardon, issued by President Ford on 19 January 1977, granting him a full and unconditional pardon. REFERENCES: 1. Army Regulation (AR) 615-364 (Enlisted Personnel Discharge Dishonorable and Bad Conduct), in effect at the time, provided the policies and procedures for separating members with a dishonorable discharge. It stipulated, in pertinent part, that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, governed the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a, an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. Paragraph 3-7b, a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c, a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-10, a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. e. Paragraph 3-11, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States 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. 4. The U.S. States Attorney’s Manual, Standards of Consideration of Clemency Petitions, states that, as a general rule, in clemency cases the correctness of the underlying conviction is assumed and the question of guilt or innocence is not generally the issue. In general, a pardon is granted on the basis of the petitioner’s demonstrated good conduct for a substantial period of time after conviction and service of sentence. The following principle factors are taken into account. (1) post-conviction conduct, character, and reputation; (2) seriousness and relative recentness of the offense; and (3) acceptance of responsibility, remorse, and atonement; (4) need for relief; and (5) official recommendations and reports. 5. AR 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION: 1. The applicant was convicted by a general court-martial and sentenced to a dishonorable discharge. His appeal was denied and he was dishonorably discharged pursuant to the sentence of his general court-martial after the sentence was affirmed. He was properly and equitably discharged in accordance with the regulations in effect at the time. 2. The evidence shows the applicant's award of a pardon did not change his underlying discharge and did not entitle him to any benefits administered by the VA. It simply restored civil rights that were otherwise lost. The pardon does not obligate the Army to upgrade the applicant's discharge. 3. The Board may determine clemency is appropriate if there are mitigating circumstances, such as a determination that the sentence was too harsh or a determination that the preponderance of evidence indicates key facts (such as a behavioral health diagnosis that may have been the underlying reason for the misconduct or other mitigating circumstances) were overlooked or misunderstood during the court-martial proceedings and during the appellate process. 4. With respect to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012797 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012797 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2