PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 January 1999                   
	DOCKET NUMBER:   AC98-11422
                                              AR1998014529

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

	Mr. Loren G. Harrell		Director	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his dishonorable discharge be upgraded to honorable.

3.  The applicant states that he served his time in the European Theater of Operations until the war was over.  He was sent back to the United States and since he liked the Army, he reenlisted.  At about the same time, his father died and his mother and sister were having financial problems.  When he went on leave and saw how bad it was, he lost control and broke down mentally.  He contends that he could not just leave his mother and sister alone since they needed medical treatment and food.  He got a job and worked to support them.  Due to the extenuating circumstances and the fact that the war was over, he respectfully asks for clemency to relieve the sorrow he has suffered ever since the war.

4.  The applicant's military records show that he was inducted into the Army on 8 August 1942.  He completed his initial training and in February 1945 was assigned to the European Theater of Operations (ETO) for duty as a surgical technician.  The applicant returned from overseas on 6 July 1945 and was assigned to Camp Polk, Louisiana.  He attained the rank of technician fourth grade.  He was honorably discharged on 19 October 1945 for the purpose of immediate reenlistment.  At the time he had completed 3 years, 2 months and 
11 days of active service.

5.  On 20 October 1945 the applicant reenlisted in the Army for an unknown period of time.  He was charged with violation of the 58th Article of War, for desertion while en route from Fort Leavenworth, Kansas, to Camp Kilmer, New Jersey, from 28 June 1946 until his surrender at Camp Crowder, Missouri, on 19 November 1946 (141 days).

6.  Before a general court-martial (GCM) on 20 December 1946, the applicant pled not guilty to the charge of desertion.  He was found guilty as charged and was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances due or to become due, and to be confined at hard labor for 1 year and 6 months.

7.  On 8 January 1947 following appellate review of the court-martial the appropriate authority approved only so much of the sentence as provided for confinement at hard labor for 1 year and a dishonorable discharge, suspended until the applicant’s release from confinement.

8.  The applicant was released from confinement and dishonorably discharged on 23 August 1947.  He had completed 5 years and 2 days of active duty and had 420 days of lost time due to AWOL and confinement.

9.  The VA, in determining qualifications for benefits administered by that agency generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service.

CONCLUSIONS

1.  The applicant’s dishonorable discharge on 23 August 1947 was accomplished in compliance with applicable law and regulation pursuant to his conviction by GCM, and there is no basis for upgrading his discharge.

2.  However, the circumstances of the applicant’s honorable discharge on 19 October 1945 have worked an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

3.  Although the applicant was not eligible for a complete and unconditional separation on 19 October 1945, the honorable discharge issued to him for the purpose of immediate reenlistment terminated a period covering more than 3 years of honorable service.

4.  In consideration of the foregoing findings and conclusions, and in recognition of his more than 5 total years of honorable service, to include combat service, it would be unjust to consider his honorable discharge of 19 October 1945 as other than a complete and unconditional separation from the military service.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was eligible for a complete and unconditional separation from the military service at he time of his honorable discharge on 19 October 1945.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

____X___  ____X___  ___X___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
	        		CHAIRPERSON