MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 May 2000
	DOCKET NUMBER:   AR1999027793

	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. Carl W. S. Chun
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge Jr.		Chairperson	
	Mr. Ernest W. Lutz Jr.		Member	
	Mr. Kenneth L. Wright		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 he be issued a DD Form 214 (Report of Separation) showing that he was honorably discharged.

APPLICANT STATES:  That he was issued a dishonorable discharge; however, upon review and reconsideration, he was reinstated and placed back on active duty in Ingran-das, France.  When he was honorably discharged, he never received a copy of his DD Form 214 and suspects that the administrative process was never completed. In support of his request, he submits an Honorable Discharge Certificate dated 24 April 1953.

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

He was inducted on 28 January 1953 and was separated with an honorable discharge on 24 April 1953 for the purpose of immediate reenlistment.

On 25 August 1954, while serving in France, the applicant was tried by a general court-martial and found guilty of stealing a saxophone, the property of the United States.  He was sentenced to confinement at hard labor for 6 months, forfeiture of all pay and allowances, and a dishonorable discharge (one previous conviction was considered).  The approved sentence was affirmed upon review, except the unexecuted portion of the sentence pertaining to confinement at hard labor was suspended effective 12 October 1954.

On 13 October 1954, the dishonorable discharge was executed at Camp Kilmer, New Jersey.  The applicant had 1 year, 6 months and 28 days of creditable service and 48 days of time lost.

The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

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.  There is no evidence to support the applicant’s contention that he was reinstated and placed back on active duty after his court-martial conviction and dishonorable discharge.  The record shows that he was issued an Honorable Discharge Certificate and DD Form 214 on 24 April 1953 for the purpose of immediate reenlistment.  His subsequent service was terminated by a general court-martial conviction that resulted in a dishonorable discharge on 13 October 1954.

3.  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

__eja___  ___ewl___  __klw___  DENY APPLICATION

    Carl W. S. Chun
    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999027793	
SUFFIX		
RECON		
DATE BOARDED	20000525	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19541013	
DISCHARGE AUTHORITY	AR615-364	
DISCHARGE REASON	A72.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.