ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  9 December 2020 DOCKET NUMBER:  AR20200004149 


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20120017644 on 11 April 2013.  Specifically, he requests his dishonorable discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 30 January 2020, with legal brief

.Exhibit 1 – DD Form 214 (Report of Separation from the Armed Forces of theUnited States), for the period ending 12 April 1955

.Exhibit 2 – Stipulation in the Case of the United States (U.S.) versus Private FirstClass (PFC) [Applicant], dated 15 February 1955

.Exhibit 3 – Violation of the Uniform Code of Military Justice (UCMJ), Articles 90and 134

.Exhibit 4 – National Archives (NA) Form 13038 (Certification of Military Service),issued on 15 January 2009

.Exhibit 5 – DD Form 260A (Dishonorable Discharge Certificate)

.Exhibit 6 – Application for Restoration, dated 29 May 1962

.Exhibit 7 – photographs of his sons



FACTS: 

1.Incorporated herein by reference are military records that were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR20120017644 on 11 April 2013.

2.The applicant defers his statement to counsel.

3.Counsel states the applicant has lived a beautiful life since his discharge.  He hasreceived an education, advanced in the workplace, and has raised a wonderful family.As he makes his final preparations, he only seeks to remove the main source of his
shame from his records.  The applicant desperately wants his discharge upgraded so he can be recognized as a Veteran upon his death.  He has no need for the other benefits that would accompany a discharge upgrade.  He only seeks to restore his honor and reclaim his good name for the sake of his family and for his personal pride. 

4.The applicant’s available record is sparse; however, the remaining records aresufficient to conduct a fair and impartial review of this case.

5.The applicant enlisted in the Regular Army on 29 April 1953.

6.Before a general court-martial on or about 15 February 1955, in the Republic ofKorea, the applicant was found guilty of lifting a weapon against his superior officer,who was then in the execution of his office, on or about 30 January 1955, and forassaulting a sentinel in the execution of his duty by forcibly taking his weapon from hishands, on or about 30 January 1955.  The court sentenced him to confinement at hardlabor for 20 years, forfeiture of all pay and allowances, and to be dishonorablydischarged from the service.

7.The sentence was approved on 18 February 1955 and the record of trial wasforwarded for appellate review.

8.General Court-Martial Order Number 155, issued by Headquarters, CentralCommand on 12 April 1955, noted that the sentence in the applicant's case had beenaffirmed and ordered the dishonorable discharge duly executed.

9.The applicant was discharged on 12 April 1955.  His DD Form 214 shows he wasdischarged under the provisions of Army Regulation 615-364 (Enlisted Personnel –Discharge – Dishonorable and Bad Conduct), as a result of sentence by court-martial.His service was characterized as dishonorable.

10.The applicant provides a stipulation in the case of the U.S. versus PFC [Applicant],wherein he details what occurred on the night of 30 January 1955.  Additionally, heprovides an Application for Restoration, dated 29 May 1962, wherein he requestedrestoration to duty in order to earn an honorable discharge.

11.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of 


discharge upgrade requests.  The Board considered the applicant counsel’ statement, his record of service, the frequency and nature of his misconduct and the reason for his separation.  The Board found insufficient evidence of in-service mitigation for the applicant's misconduct.  The applicant provided a statement, but no supporting evidence of post-service achievements or letters of reference in support of a clemency determination.  One member member found the statement sufficient to grant relief byupgrading the characterization of service to general under honorable conditions based upon the applicant’s post achievements and liberal consideration.  The Board majorityfound the evidence insufficient, based on the serious misconduct which led to theapplicant’s separation, to support a clemency determination.  Based on a preponderance of evidence, the Board majority concluded the characterization ofservice received at the time of discharge was not in error or unjust.  Therefore, theBoard denied relief.   BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : XXX GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

XXX XX : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 








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.






1.Title 10, U.S. Code (USC), Section 1552(b), provides that applications for correctionof military records must be filed within three years after discovery of the alleged error orinjustice.  This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the three-year statute of limitations if the ABCMR determines it would bein the interest of justice to do so.2.Army Regulation 615-364, in effect at the time, set forth the basic authority for theseparation of enlisted personnel for dishonorable and bad conduct.  Paragraph 1aprovided that individuals would be discharged with a dishonorable discharge pursuantonly to an approved sentence of a general court-martial and that the appellate reviewmust be completed and affirmed before the sentence was ordered duly executed.3.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth thebasic authority for the separation of enlisted personnel.  The version in effect at the timeprovided that:a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.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 thejudicial process.  In accordance with Title 10, USC, Section 1552, the authority underwhich 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-martialprocess and then only if clemency is determined to be appropriate.  Clemency is an actof 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 toMilitary 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//