IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20230000312 APPLICANT REQUESTS: Reconsideration of his previous requests for an upgrade of his dishonorable discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record), dated 12 November 1971 and 27 September 2022 * Congressional Liaison Letter, dated 21 September 1971 * Two Counsel Letters, dated 24 September and 30 October 1971 * Article titled “Court-Martial in Doubt,” unknown date and source FACTS: 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 AC72-03799A on 14 October 1981. 2. The applicant states his sentence was too severe. This was a civil offense and not a military offense, and since it occurred before 1963 he is eligible for a review. He also contends he applied in 1971 and never heard anything back from the Board. 3. The applicant’s available military records are very limited. A fire destroyed approximately 18 million service members records at the National Personnel Records Center (NPRC) in 1973. The NPRC believes that the applicant’s records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case. 4. On 30 November 1950, the applicant enlisted in the Regular Army for three years. 5. The applicant’s previous consideration shows he was convicted of the following/on: a. By Summary Court-Martial, on or about 20 February 1951, for going absent without leave (AWOL) for three days. He was sentenced to 14 days hard labor without confinement and forfeiture of $30 pay. b. On or about 30 September 1952, by Special Court-Martial for being AWOL for 10 days. He was sentenced to 33 days confinement at hard labor and partial forfeiture of pay. 6. On or about 6 June 1953, the applicant and two buddies went drinking in Pusan, Korea. The applicant agreed to go back to the unit and was given some whiskey to take back for one of his buddies. He apparently drank the liquor and instead of going back to the unit, returned to look for the buddy. He found the buddy with a prostitute. They argued, the applicant left, stood outside, and fired at least five rounds from his carbine into the house. He went to a second house of prostitution and upon finding the door locked, broke it down. He claimed to have seen some communist literature inside, so he used a Kerosene lamp to set the house afire, and it burned to the ground. He went to a third house and to make the people quiet down, fired a shot into the air. He was finally taken by the Military Police. The applicant testified that he was drunk and had become enraged by the swastikas he had seen in these books and wanted to destroy them. 7. On 30 September 1953, before a general court-martial, at Pusan, Korea, the applicant was found guilty of one specification of willfully and maliciously burning an inhabited dwelling (arson), one specification of unlawfully entering a dwelling, and one specification of wrongfully and willfully discharging a firearm into an occupied dwelling, on or about 7 June 1953. His punishment included confinement at hard labor for five years, forfeiture of all pay and allowances, and a dishonorable discharge from the service. 8. On 20 October 1953, the convening authority approved only so much of his sentence as provided for three years confinement, forfeiture of all pay and allowances, and dishonorable discharge (suspended until his confinement was complete). The record of trial was forwarded for appellate review. 9. On 18 December 1953, the U.S. Army Court of Military Review reviewed his case and affirmed the findings and sentence. 10. General Court-Martial Order Number 499, issued by Headquarters, 6th Infantry Division, Fort Ord, CA on 21 May 1954, confirmed the affirmation of his sentence and ordered the dishonorable discharge duly executed. 11. On 2 October 1954, the applicant was released on parole and subsequently discharged pursuant to his court-martial sentence. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty), is not available for review. 12. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (USC), 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. 13. On 14 October 1981, the ABCMR considered the applicant’s petition for an upgrade of his discharge. After careful consideration, the Board determined his characterization of service was neither in error nor unjust. Accordingly, his request for relief was denied. 14. The applicant provides his previous request for relief with a congressional liaison letter, and two counsel letters used in his 1971 application. Additionally, he provides a newspaper article questioning the validity of court-marital proceedings. 15. In reaching its determination, the Board can consider the applicant’s arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. ABCMR 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. 2. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. The Board found the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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 to amend the decision of the ABCMR set forth in Docket Number. AC72-03799A on 14 October 1981. 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. ADMINISTRATIVE NOTES A review of the applicant’s records shows he is authorized an additional award not annotated on his DD Form 214 for the period ending 2 October 1954 As a result, amend his DD Form 214 by adding the: Korea Defense Service Medal(KDSM) REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. 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. Chapter 3 provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. 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, BCM/NRs 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. b. 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// ABCMR Record of Proceedings (cont) AR20230000312 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1