ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 February 2020 DOCKET NUMBER: AR20170004690 APPLICANT REQUESTS: in effect, expungement of his court-martial charges from his records and award of the Army Good Conduct Medal. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Letter, Applicant to National Personnel Records Center (NPRC), undated (15 pages) * Letter, NPRC, dated 3 November 2016 * DD Form 458 (Charge Sheet), dated 24 March 1955 * DD Form 214 (Report of Separation from the Armed Forces of the United States) REFERENCES: 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. 2. Title 10, U.S. Code, section 1552(f), 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. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. Army Regulation 672-15 (Decorations and Awards – Service Medals), in effect at the time, stated service medals are awarded to members of the Armed Forces of the United States to denote the performance of specific duty while in active Federal service. a. Paragraph 3 (Recommendations) stated regulations do not require that an individual be recommended for award of an Army service medal except that such recommendations are required when the award of the Good Conduct Medal or Good Conduct Medal Clasp is to be made by a field commander. No decoration shall be awarded or presented to any individual whose entire service subsequent to the time of the distinguished act, achievement, or service shall not have been honorable. b. Paragraph 12 (Good Conduct Medal) provided the requirements as exemplary behavior, efficiency, and fidelity in an enlisted status upon termination of service for a period of less than 3 continuous years but more than 1 continuous year when any part of that period of service is rendered between 27 June 1950 and a date to be announced and no previous award of the Good Conduct Medal had been made. (1) All character and efficiency ratings must have been recorded as "Excellent" or higher, except ratings of "Unknown" for portions of the period under consideration and service school efficiency ratings of less than "Excellent" entered prior to 3 March 1946 will not be disqualifying. (2) There must have been no convictions by courts-martial. c. Paragraph 33 (Army of Occupation Medal) provided the requirements as service for 30 consecutive days at a normal post of duty while assigned to armies of occupation, including Army of Occupation of Germany between 9 May 1945 and a terminal date to be announced later. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he accepted a finding of not guilty of charge I of assault because it was explained to him. The charge was reduced to disorderly conduct. Charge II was for being absent without leave and was not explained to him before he went to court-martial. For the record, he was not guilty of the assault or disorderly conduct, but was guilty of exceeding the time limits of an authorized pass. Their new company commander received a complaint from whose name he did not know at the time, and immediately had his off-duty military police stand in a lineup to be viewed by whoever he had hidden behind a curtain in the barracks auditorium. The company commander never considered talking to him and fellow military police before humiliating and dishonoring them by who assaulted them. It's hard to understand, but five military police Soldiers were sitting at a table at the club in Germany when a little guy came running at them, screaming with a chair over his head, and dived across their table knocking them to the floor. He got up and grabbed by the back of his pants and lifted him to a standing position. Then he held on to him and walked him out. 3. He was inducted into the Army of the United States on 20 April 1953. 4. The DD Form 458 (Charge Sheet), dated 24 March 1955, shows court-martial charges were preferred against him for: a. Charge I: violation of Article 86 (Absence without Leave) of the Uniform Code of Military Justice in that he absented himself from his organization without proper authority on or about 2400 hours, 20 March 1955, and did remain so absent until on or about 0200 hours, 21 March 1955; and b. Charge II: violation of Article 134 (General) of the Uniform Code of Military Justice in that he was disorderly in a public place on or about 7 February 1955. c. He was found not guilty of charge I (Article 86) and he was found guilty of charge II (Article 134). His sentence was adjudged on 1 April 1955 and approved on 9 April 1955. His sentence consisted of restriction to the limits of his company area for 1 month and forfeiture of $20.00. 5. His DD Form 230 (Service Record) shows in: a. Section 9 (Medals, Decorations, and Citations), he was awarded the National Defense Service Medal and Army of Occupation Medal – Germany; b. Section 13 (Record of Trials by Courts-Martial), he received a summary courts- martial conviction under Article 134 of the UCMJ for being disorderly in a public, on 7 February 1955. His sentence was adjudicated on 1 April 1955 and approved on 9 April 1955; c. Section 14 (Remarks), from 5 November 1953 through 16 April 1955 his commander rated his character as "Excellent," his efficiency as "Excellent," and he was favorably considered for award of the Good Conduct Medal; and d. Section 18 (Report of Separation), no blocks were marked for "Consideration for Good Conduct Medal or Clasp." 6. He was honorably discharged on 27 April 1955. His DD Form 214 shows he was awarded or authorized the Army of Occupation Medal – Germany and National Defense Service Medal. 7. He provided his 15-page request to NPRC, dated on or about 11 March 2016, requesting his discharge documents and describing his military service and the events surrounding his court-martial. 8. On 3 November 2016, the NPRC responded to the applicant's request and provided his separation documents. 9. 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 BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the charge sheet, the nature of the misconduct, record of court-martial, the entries on his DD Form 230 (Service Record) specific to the Good Conduct Medal and his honorable discharge. The Board found it cannot effect a change to the applicant’s court-martial conviction. The Board determined that the minor nature of the misconduct should not be disqualifying for consideration of the AGCM. Based on a preponderance of evidence, the Board determined that the absence of a Good Conduct Medal in the applicant’s records was in error. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 amending the DD Form 214 for the period of service ending 27 April 1955 to add to item 27 (Decorations, Medals, Badges….) – “Good Conduct Medal.” 10/7/2020 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. //NOTHING FOLLOWS//