MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 January 1999                   
	DOCKET NUMBER:   AC98-12142
				   AR1998012548

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Robert W. Garrett		Member	
	Mr. Curtis L. Greenway		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:  Reconsideration of his previous application that his dishonorable discharge be upgraded to a general under honorable conditions discharge.

APPLICANT STATES:  In effect, that he was young when he entered the Army, could not understand English, and was an alcoholic.

COUNSEL CONTENDS:  Counsel makes no contention.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 31 August 1977 (COPY ATTACHED).

The applicant's military records were lost or destroyed in the National Personnel Records Center Fire of 1973.  Information herein was obtained from the record of his trial by court-martial and from alternate sources.

He was born on 28 June 1933 in Los Angeles, CA but shortly after his birth his parents returned to Mexico.  He returned to the United States when he was about 15 years old.  He enlisted in the Army on 3 June 1952.

On 14 January 1953, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 3 August 1952 until 7 January 1953.  He was sentenced to confinement at hard labor for 3 months and to forfeit $42 pay for 6 months.

On 14 June 1954, the applicant pleaded guilty to and was convicted by a general court-martial of being AWOL from 11 May 1953 - 18 May 1954 and of desertion. He was sentenced to a dishonorable discharge and to confinement at hard labor for 2 years.

On 23 June 1954, the applicant was discharged, with a dishonorable discharge, pursuant to his court-martial conviction.

On 8 July 1954, the Army Board of Review affirmed the findings of guilty and the sentence.

He was released from confinement on 19 December 1955.

Title 10, U. S. code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court martial conviction.

On 28 November 1977, this Board denied the applicant’s request for an upgraded discharge.

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.  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.

2.  The applicant went AWOL and deserted during a time the country was at war. 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.

3.  While the Board has taken cognizance of the applicant’s good post-service conduct, this factor does not warrant the relief requested.

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

__LLS___  __RWG__  __CLG__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12142/AR1998012548	
SUFFIX		
RECON		
DATE BOARDED	19990128	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.