MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            12 August 1999
	DOCKET NUMBER:   AR1999020179

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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 bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that his court-martial was the result of his First Sergeant’s misunderstanding of an illness he was suffering from; and that prior to this incident he was never in conflict with his superiors and he was a good soldier.

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

There are no available records on the applicant; however, there is a Certification of Military Service, issued by the National Personnel Records Center, St. Louis, Missouri on 19 March 1981 which documents that the applicant was a member of the Regular Army from 22 August 1950 to 4 September 1953; that his service was terminated by a BCD; and that the last rank he held was private/E-1.

The evidence of record does include General Court-Martial Orders Number 62, Headquarters, 2nd Armored Division, APO 42, U.S. Army, dated 24 June 1953 which shows that the applicant was convicted of a violation of Article 86 of the UCMJ for being absent from his unit from 0001 hours on 3 June 1953 to 0500 hours on 4 June 1953.  The resultant sentence included that he be discharged with a BCD; that he forfeit all pay and allowances; that he be confined at hard labor for three months; and the sentence documented that four (4) previous convictions were considered in the sentence.  

The record also includes the decision of the United States Army Board of Review, issued by the Department of the Army Office of the Staff Judge Advocate General, Washington D.C., dated 31 July 1953.  The Board of Review found the findings of guilty and the sentenced as approved by proper authority correct in law and fact.  Based on these findings the guilty finding and the sentence were finally affirmed.   

General Court-Martial Order Number 464, issued by Headquarters, Camp Kilmer, New Brunswick, New Jersey, dated 27 August 1953 directed, the court-martial findings and sentence having been finally affirmed, that sentence be duly executed with the following modification:  the unexecuted portion of the sentence pertaining to confinement is suspended effective 31 August 1953.  Accordingly, on 4 September 1954, the applicant was separated with a BCD.

There is no indication in the available documents that there was ever a medical issue or illness associated with the applicant’s court-martial or subsequent BCD, or that there was any arbitrary or capricious action taken by any member of the applicant’s chain of command which effected this process.

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 Board noted the applicant’s contention that, in effect, his discharge was the result of his First Sergeant misunderstanding that he was not refusing his order but was too ill to respond; and that prior to that incident he had not difficulty with his superiors and he was a good soldier.  However, the evidence of record or independent evidence submitted by the applicant do not support these contentions.  There is no indication that a medical problem or illness was associated with the misconduct which resulted in the applicant’s court-martial and ultimate discharge.  Further, the court-martial records indicate that four prior convictions were considered when the applicant was sentenced to a BCD. 

2.  The evidence of record shows that the applicant’s court-martial conviction and sentence were upheld on appeal by the United States Army Board of Review.  In the absence of evidence to the contrary, it is presumed that the trial by court-martial was warranted.  The applicant’s conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the applicant’s record of service. 

3.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.

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

__rvo ___  __ja ____  __mw ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020179	
SUFFIX		
RECON		
DATE BOARDED	1999/08/DD	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1953/09/04	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.  807	144.9217/A92.17	
3.  855	144.9321/A93.21	
4.  881	144.9411/A94.11	
5.  361	144.0100/A01.00	
6.