IN THE CASE OF: BOARD DATE: 12 June 2018 DOCKET NUMBER: AR20160008359 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 12 June 2018 DOCKET NUMBER: AR20160008359 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 reconsideration of his earlier request for an upgrade of his bad conduct discharge. 2. The applicant states: * all his records were lost in the 1973 fire and he does not have anything to show the Board what he did before his bad conduct discharge * he completed basic combat and advanced individual training and he also completed airborne training * he tried to go overseas but there were no airborne units in Korea at the time and peace talks were still going on * he tried to go to Ranger school but he got in trouble with the sergeant, which changed everything * for many years after his discharge, he felt very ashamed but was always proud of our country * after his discharge, he worked in various jobs, met his wife, and they had a son, and although they lived in a bad area, he worked hard * he got involved in baseball and coached his son's team and built a house in a wooded area where he remains today * his son ultimately joined the Air Force, his sister served in the Army and even married a Soldier, and his brother served in the Air Force; his brother also participated in D-Day and received a Purple Heart * in the late 1970s, he began going to church with his son, and this experience changed his life; he became the head usher and is responsible for the cash * he also received a letter from the American Legion approving him to become a member * if he had known about the Board he would have submitted an application to upgrade his discharge a long time ago 3. The applicant provides: * Certificate of Training, dated 8 February 1955 * Airborne School Certificate, dated 19 March 1955 * Newspaper article with photo * Previous Record of Proceedings CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150003495, on 8 October 2015. 2. The applicant provides a new argument that 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 available records show on 15 January 1957, Headquarters, Fort Monroe, VA, published Special Orders Number 10 ordering the applicant discharged effective 21 January 1956 and that he would be given a DD Form 259A (Bad Conduct Discharge Certificate). * the authority was Army Regulation (AR) 635-204 (Dishonorable and Bad Conduct Discharges) and General Court-Martial Order 252, issued by Headquarters, Fort Meade, MD, on 27 July 1956 * the Separation Program Number (SPN) was 292 (other than desertion – court-martial) 5. The applicant's DD Form 214 ((Report of Separation from the Armed Forces of the United States) is not available for review. However, his service record contains a Certification of Military Service issued by the National Archives and Records Administration on 22 September 2014. It shows: * he served in the Regular Army from 20 September 1954 to 21 January 1957 * he was discharged as a private with a bad conduct discharge 6. He provides: a. Certificate of Training, dated 8 February 1955. It shows he satisfactorily completed Advanced Individual Training with Company A, 506th Airborne Infantry, Fort Jackson, SC. b. Certificate of Training, dated 19 March 1955. It shows he successfully completed Airborne training at Fort Campbell, KY. c. Newspaper article, dated 4 February 1953, with a picture of 9 out of 11 childhood buddies who were joining the paratroopers as a team. REFERENCES: 1. AR 635-204, in effect at the time, provided for separation of enlisted personnel with a dishonorable discharge pursuant to an approved sentence of a general court-martial. This regulation also provided for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial or a special court-martial imposing a bad conduct discharge. 2. AR 635-200 (Personnel Separations–Enlisted Personnel) superseded Army Regulation 635-204. 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. c. Paragraph 3-7c states 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 3-11 states a member 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. AR 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. 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. 4. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. DISCUSSION: 1. The complete facts and circumstances surrounding the applicant's discharge are not available for review. However, his available records show he was convicted by a general court-martial and sentenced to a bad conduct discharge. It appears his chain of command determined his trial by a general court-martial was warranted by the gravity of the offense charged. He received a bad conduct discharge pursuant to an approved sentence of a general court-martial. 2. In the absence of evidence to the contrary, it is presumed the appellate review was completed and the affirmed sentence was ordered duly executed. All requirements of law and regulation were presumably met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board 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. 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 ABCMR set forth in Docket Number AR20150003495, on 8 October 2015. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160008359 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008359 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2