ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 3 February 2020 DOCKET NUMBER: AR20190013211 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number 68-3246 on 22 January 1969. Specifically, he requests his dishonorable discharge be upgraded. 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), dated 15 July 2019, with self-authored statement * three character reference letters, dated between August 2014 and July 2019 * Case Summary and Presentation, undated, written by D.E.W. FACTS: 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 68-3246 on 22 January 1969. 2. The applicant states: a. On 31 October 1950, while on the Manchurian border his unit was overrun by approximately 250,000 Chinese military. He lost 25 percent of his unit during the battle. After the battle, they were pulled back to the rear to resupply and to bring in more troops to replace those that were killed or wounded. b. In April 1951, the applicant and four other Soldiers came across a Korean national woman and four of the Soldiers raped the woman. He did not participate in the crime and the woman testified at his court-martial that one of the Soldiers did not rape her. She could not identify which one. However, he was found guilty and sentenced to 50 years. He was paroled after six years for good behavior. The court-martial did not take the victim’s testimony into consideration and he has continued to speak of his innocence since then. c. He is now 87 years old and this conviction haunts him for something that he did not commit. He has been suffering from the effects of being overrun since October 1950 when they were attacked. He would like to clear his record. 3. The applicant enlisted in the Regular Army on 12 January 1949. 4. The applicant served in the Republic of Korea from July 1950 through June 1951. 5. Before a general court-martial on or about 13 June 1951, at Headquarters, 1st Calvary Division, Republic of Korea, the applicant was found guilty of forcibly and feloniously having carnal knowledge with a woman, against her will, on or about 14 April 1951. The court sentenced him to confinement at hard labor for 50 years, forfeiture of all pay and allowances, and to be dishonorably discharged from the service. 6. The sentence was approved on 3 July 1951 and the record of trial was forwarded for appellate review. 7. General Court-Martial Order Number 388, issued by Headquarters, Camp Roberts, California, noted that the sentence in the applicant's case had been affirmed on 27 November 1951. So much of the confinement in excess of 25 years was remitted by order of the Secretary of the Army. The dishonorable discharge was ordered duly executed on 10 April 1953. 8. The applicant was discharged on 10 April 1953. His DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he was discharged under the provisions of Army Regulation 615-364 (Enlisted Personnel – Discharge – Dishonorable and Bad Conduct), paragraph 1a, as a result of sentence by court-martial. His service was characterized as dishonorable. 9. The applicant provides three character reference letters attesting to his kindness, honesty, and integrity. Additionally, he provides a case summary, which is said to be a story written about him. These documents are provided in their entirety for the Board's review. 10. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the seriousness of the crime for which the applicant was convicted of and a lack of corroborating evidence to the applicant’s statement of innocence, the Board concluded there was insufficient evidence to show an error or injustice which would warrant making a change to the characterization of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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 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. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 615-364, in effect at the time, set forth the basic authority for the separation of enlisted personnel for dishonorable and bad conduct. Paragraph 1a provided that individuals would be discharged with 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), now in effect, sets forth the basic authority 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. 4. 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records, on 25 July 2018, regarding equity, injustice, or clemency determinations. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. b. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. c. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//