MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            26 May 1999
	DOCKET NUMBER:   AC98-11191
	AR1998013493

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Arthur A. Omartian		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his “Blue” discharge be upgraded to an honorable or a general discharge.

APPLICANT STATES:  In effect, that he was young at the time that his offenses were committed.  He states that he is now an 80-year old man and he is in good standing in his community.  In support of his appeal he submits a letter dated 6 October 1980, from the Governor of San Juan, Puerto Rico, a letter of recommendation from the Pastor of his church dated 30 September 1997, a letter from the priest of the church that he attends dated 29 September 1997, and a letter from the Mayor of Naranjito, Puerto Rico also dated 29 September 1997.  All of the letters attest to the applicant’s good character and standing in the community and they recommend that favorable consideration be given to his appeal.

EVIDENCE OF RECORD:  The applicant's military records show:

On 18 December 1940, he enlisted in the Army for 3 year at age 21, in the pay grade of E-1 at Fort Buchanan, Puerto Rico.

The applicant was convicted by a general court-martial on 11 August 1941, of committing assault with intent to do bodily harm by stabbing another soldier in the back with an ice pick.  His sentence consisted of a dishonorable discharge, confinement at hard labor and a forfeiture of pay.  On 1 July 1942, the unexecuted portions of his sentence to confinement and forfeiture of pay were remitted.  He was restored to duty and placed on probation for 1 year.

On 18 August 1942, the applicant was convicted by a summary court-martial of being AWOL with the intent to avoid a particular duty, from 1 August until 3 August 1942.  His sentence consisted of a forfeiture of pay.

On 11 September 1942, a board of officers convened to determine whether he should be discharged from the military prior to the expiration of his term of service under the provisions of Army Regulation 615-360.  The board found that the applicant gave evidence of habits or traits of character which rendered his retention in the service undesirable and that rehabilitation was considered impossible since repeated attempts had failed.  The board recommended that he be discharged under the provisions of AR 615-360, for habits or traits of character which rendered his retention in the service undesirable.  The board further recommended that he be issued a Blue Discharge Certificate.

He was convicted again by a summary court-martial on 26 September 1942, of being AWOL with the intent to avoid a particular duty.  His sentence consisted of a forfeiture of pay.

On 26 October 1942, the applicant was discharged under the provisions of Army Regulation 615-360 for habits and traits of character which rendered his retention in the Army undesirable.  He had completed 1 year and 10 months of total active service and he had approximately 340 days of lost due to AWOL and confinement and he was issued a Blue Discharge Certificate .

A review of the records indicate that the applicant has applied to this Board requesting that his discharge be upgraded on numerous occasions.  However, there is no decisional document in his available records.

Army Regulation 615-360, then in effect, provided for the issuance of a Discharge from the Army of the United States (Blue) for individuals separated by reason of inaptness or undesirable traits of character.  The certificate of discharge did not indicate any characterization of service.  It was, however, issued in accordance with the guidance contained in Army Regulation 345-470, then in effect, as follows:  the blue discharge must be used in all cases where service has not been honest and faithful or where a character of “Fair” or “Poor” is given, and in which a dishonorable discharge cannot be given.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  The applicant’s post-service conduct has been noted by the Board.  However, that in itself is not sufficiently mitigating to warrant the relief requested.

4.  His contention that he was young at the time is not supported by the evidence of record.  The Board notes that the applicant was 21 years old when he enlisted in the Army and he was 22 years old at the time he was convicted by a general court-martial for stabbing another soldier.  He was restored to duty and he continued to display habits and traits of character that rendered his retention in the Army undesirable.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___mdm_  __aao___  ___be___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID  	AC98-11191/AR1998013493	
SUFFIX		
RECON		
DATE BOARDED	1999/05/26	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1942/10/26	
DISCHARGE AUTHORITY	AR 615-360 	
DISCHARGE REASON	731	
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.  716	A73.00	
2.  708	A71.00	
3.		
4.		
5.		
6.