The Army Board for Correction of Military Records

• Author: by Major Lawrence H. Williams
• Pages: 02

Emma Lazarus in "The Iiew Colossus" wrote:

"Give me your tired, your poor, your huddled masaei yearning TObreathe free. The wretched refuse of you teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the goiden door.''

To those individuals of the military services, both civilian and military, to whom all other avenues of redress for the adjustment of their personal grievances are either exhausted or otherwise closed, the words quoted above from the inscription at the base of the Statue of Liberty are not inappropriate to describe the Army Board for Correction of Military Records.

1. HISTORY OF THE BOARD

The Army Board for Correction af Military Records (here-after referred to as the ABCMR or the Board) was established, pursuant to Section 207 of the Legislative Reorganization Act of 1946,' in a successful attempt by the Congress to free itself from the burdens of private relief legislation concerning military and naval records. Section 207 also established similar boards in the Air Force, the Coast Guard and the Navy. Prior to their establishment, upon the exhaustion of the administrative remedies available within a military department, an aggrieved individual was left to court action if the matter was justiciable (which it often was not) or to private relief legislation. This latter process, which was usually unsuccessful, was time eon-suming both for the Congress and the individual. It often meant private relief bills introduced by Members of Congress, sometimes reluctantly, at several sessions of the Congress, personal appearances of the individual and other witnesses before numer-ous committees, and not infrequently a veto by the President after passage of the legislation by the Congreas. Accordingly, the Congress, in accordance with its desire to streamline its own operations, enacted the following sections in the Legislative Re-organization Act of 1946.

"Sec. 131. No PIivate bill or rebolutian authorizing or directing ***

the correction of B military or naval record. ahall be received or con. sidered in either the Senate or the House of Representatives."

*GO 67TB 41

3IILITARY L.iW REVIEW

Wax, the Seeiotais a i the Znvy, a

fh ieipeet to ?he Coast Guard, rerpeehem, and acting through boards of c18 leipeetive depaltments, SIC aut orm nial ieeord shere ~n their iudement svch LI e1141 DT to remo7.e an I"lu8nee."

In 1951, Section 2Oi was amended- primarily to provide that, under procedures approved by the Secretary of Defense, papment of claims arising from the correction of records could be made. The present citation for Section 207, as amended, is title 10, United States Code, section 1652. The current departmental resulations governing the Board are Army Regulations 16-185, 18 July 1955.

Since its establishment in 1947, the Board has received more than 18,000 apulications far correction of individual militars records. Approximately half of these have come from individuals who have received dishonorable or bad conduct discharges, and the balance hare covered a wide variety of alleged errors or injustices, chief among which are eligibility for disability retirement, Nore than 2.000 changes of individuals' records have resulted from formal hearings by the Board, and over $2,600,000 has been paid as a result of such corrections! The ABCMR considers a range of cases as inclusive as the number of possible actions affecting Army personnel. As stated by XY. Gordon D. Taft, Chairman of the Board:4

have ewered rlmoit r careel."

Act of 25 October 1951, fi5 Stat. 655

Statistics furnished bs >IF Gerald Cawden. Staff Assistant to the Assistant Secretary of the Army OIPBRF) : folmerly Executive Secretary of the IBCMR.

Memorandum of Chairman, ABCMR.40 OPI Att'i- Gen 504 119481 December 1967.1? *GO tllB

-able phase of expmierca I" il -01

11. REVIEW BY THE ABCMR OF CONVICTIONS OF COURTS-MARTIAL

Soon after enactment of Section 207, there arose the question whether the ABCMR could review courts-martial cases, In his first decision on Section 207,' the Attorney General reviewed the several classes of private relief legislation considered by the Congress for members or farmer members of the military

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THE ARMY BOARD FOR CORRECTIOK OF MILITARY RECORDS

services, and answered the questions presented by stating that Section 207 was designed to cover all cases formerly the subject of private relief legislation. He went on to state that Section 207 was broad enough to cover not only the correction of a record reflecting a dishonorable discharge but also to cover the issuance of an honorable discharge certificate to the applicant after such correction. That opinion also stated pertinently:

"On the other hand, the langllage of section 107 cannot be construed as permitting the reopening of the prmeedinga, findings, and judgments of eOUrta martial IO BP to disturb the e~nelu~i~enewof such judgments, which has long heen recognized by the courts."''. . . . I may add that I have no doubt that in considering the necessity and propriety af providing for relief under section 207 in any particular case or &si of case% YOU are entitled to take into aeeovnt the need foi maintaining systems of eovrts martial which will provide elective dir-eiplinary measures as well 8s muring ju~tm

TO the individual. It wa3 clesrly not the intention of the Congress to make mandatory, npon re-W ~ L S by interested parties, the indiscriminate and whalenale reexamination of diaeharges or dismianalr by resion of ~entencei of general courts martial. The remotme%% of the time of the sentence, the improbabilitl in such a ease that the ejuitm cavid be more fairly determined upon R

reaxammation, and the practical efficacy or vsefvlness of B present ex-tension of clemency are factors which may pmperly be considered. Furthermore, section 207 IS not to bo regaided as mperimparing B

further means of revlev, freely availsbie, upon the procedures prevmu~lg set UP. For example. B soldier sentenced to death by court martiai. whose Bentenee has been examined and approved by the Secretary of War and by the President, is not given by Section 207 an automatic stay of execution or any right to further review The regulations established under that seelion may, and in my opinion should refleet these canslderatians.

"Far the foreaolng reasons it is my opinion that entriea m naval and military records reinlting from the actions of general courts maitid come wrfhin the purview of section 201 of the kginlative Reorganization Act, at least to the extent herembefore Indicated."

As may be seen, the first paragraph of the above quotation states the belief that Section 207 cannot be used to disturb the conclusiveness of judgmenta of courts-martial. Exactly where such a disturbance begins has been a fruitful subject of con-jecture.B The Judge Advocate General of the Amy has taken the position' that the substitution of an honorable discharge "or other action looking to a change in the legal effects of the sentence" is within the power of the Board and would not dis-

rurb the conclusiveness of a trial by court-martial. In another caae,B the same riew was stated thusly:

''In cm~onanfewith there opinlans of the Attorney General, this omee

has expreired the opinion that the Army Board far the Correction of IIIlitary Records, or the comparable hoards in the other military departments, not being established 81 appellate tribunals m the court-martial ryatem, may no: determine that the proceedings. findings, or sentence of r court-martial are erroneoa?, nor reearnmend that they be declared null elminee that an injvitiee has been lar sentence. the Board may legally rher than the records pertaining appellate proceedings. be corrected sentence. as distinguished from the ientenee itaelf. This i d no: cannidered a reopening of or a collateral attack upon the judgment of the eout-martial, but rather is considered

ID the nature a i an met of clemency. compaiable to a nueeerifvl appeal to the Congress for relief by private iegidatmn.

";. It is beliered that The Judge AdTocate General of the Air Force is in general agrement with the views of this office net out above. In anopinion dared 14 January 1952 (Op JAGAF 195216; 1 Dig. OPS., Records and Reparra. see 16.7), he itaied that the eorrecfmn of entries in Air Force ieeords iesvltirg from court-martin1 pmceedmgi, ahere such actIan IS necessary (0 eorrecc an emOI 01( remow an mjurtiee, comes within the province of the Air Force Board for Correction of Military Records. He stated further, however:

'. . , . Technically, the correction of a record IO remwe B reference to B

canvietion by court-martial does not disturb the finality and canelusive. ness of proceedings, findings and sentence (40 Opr Atty Gen 504, supra), but for all practical purpasei the error or injustice wonid be effectively corrected insofar as thar 13 possible.' "

The Judge Advocate General of the Army, when requested to provide an operating guide to clarify the power of the ABCMR in cases involving canrictions by courts-martial, stated :$

"2. The statute cresting the Board and prereiibing its authority can- not be interpreted BI permitting the reopening of the proceedings, hnd-mg6, and sentences of courtimarnal 30 BI TO dmturb their cmdusjwm8s. The Federal caurta have long reeagmzed the prinmple that such w o - eeedmgs, findings. and aenteneei may not be disturbed or reriewed except by m appellate tribunal within the same judicial hierarchy, if the court

I" question had jurisdiction over the person and offense and iurirdietian to adjudge the sentence Imposed. Thin principle is now apeeifiealiy reeagnired ~n lrtiele 76. Uniform Code of ?dilitary Juatice. The Board, being an adminutrative body not included m the court-martial system. validity of such pmceedinga, findinia. 3 legally objectionable for the boaid to find an (woj. in such cases, or to recommend that the praeeedingn, find-mgs, or sentence be declared null and void

' JAGA 1956 6699, 9 July...