MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 January 1999                   
	DOCKET NUMBER:   AC98-09736

	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	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Margaret V. Thompson		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:  That his bad conduct discharge (BCD) be upgraded to honorable.

APPLICANT STATES:  That he was not properly represented by military counsel and he was too young to understand the affects of his discharge.

COUNSEL CONTENDS:  That the board should examine the applicant’s case based on fairness and equity, and change the discharge as appropriate.

EVIDENCE OF RECORD:  The applicant's military records were burned in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed personnel records.  

He enlisted in the Army on 8 November 1948 for a period of 3 years.  He was awarded military occupational specialty 5740 (Radio Operator).  His highest rank attained was private first class (E-3).

While assigned to Germany the applicant was convicted by a summary court-martial on 5 May 1951 for being AWOL from 20 April through 25 April 1951.  He was convicted by a special court-martial on 30 June 1951 for being AWOL from 21 May through 2 June 1951, for being AWOL from 3 June through 6 June 1951, and for breaking arrest.

He was convicted by a special court-martial on 16 October 1951 for being AWOL from 31 August through 3 September 1951 and for breaking arrest on
11 September and 14 September 1951.  He was sentenced to forfeiture of $50.00 pay per month for 6 months, confinement at hard labor for 6 months, and a BCD.  The convening authority approved the sentence but suspended execution of the BCD until his release from confinement or until completion of the appellate review.  

On 4 December 1951 the Board of Review examined the record of trial and found it to be legally sufficient to support the findings of guilty and the sentence.  The applicant was separated from the Army on 8 March 1952 with a BCD.

According to the Manual for Courts-Martial, Table of Maximum Punishments, in effect at the time, the maximum punishment the applicant could have received was 6 months confinement, forfeiture of $58.33 pay per month for 6 months, and a BCD.

The applicant submitted a request for an upgrade of his discharge to the Army Discharge Review Board, and it was denied on 17 September 1974.

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.  Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

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

3.  The contentions of the applicant and his counsel have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.

4.  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

____X____  ____X____  ___X_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.