MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           16 May 2000                  
	DOCKET NUMBER:   AR1999028554

	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		Director	
	Ms. Rosa M. Chandler		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Mr. Van B. Cunningham 		Member	
	Mr. Lester Echols 		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 dishonorable discharge (DD) be upgraded to a fully honorable discharge. 

APPLICANT STATES:  In effect, that he left his unit in an absent without leave (AWOL) status because his mother was very ill.  While he was at home visiting his mother he got married.  As a result of being AWOL, he was sentenced to confinement for 25 years.  He spent 3 years and 6 months in prison and he spent another 4 years and 6 months on probation.  He is 76 years old and requests that the Board forgive him for making this mistake.  All of these documents show that he has tried to do the right thing since he was separated from the service.  He is a good person and a reputable family man.  He submits several statements that were written in his own behalf, letters that were written by family members, friends, and a former employer.  He also submits a letter that was written to his Congressman and a card that shows that he was an active member of the North Carolina Law Enforcement Officers Association in support of his request. 

EVIDENCE OF RECORD:  The applicant’s records were partially destroyed in the National Personnel Records Center fire in 1973.  However, evidence available indicates that he enlisted in the Regular Army on 11 June 1940 for a period of 3 years.  His military occupational specialty (MOS) was 521 (Coast Artillery Corps Basic Trainee).

His records show that he was AWOL on 19 separate occasions between 
1940 and 1942 and he also received six court-martial convictions.  These include:

On 21 January 1941, he was convicted by a special court-martial of failing to obey a lawful order of a commissioned officer, of being AWOL from 
5-10 December 1940, and of being AWOL from 21 December 1940-1 January 1941.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $13.83 pay per month for 6 months.

On 9 June 1941, he was convicted by a summary court-martial of being AWOL from 16-25 May 1941.  He was sentenced to confinement at hard labor for 
21 days and forfeiture of $10.00 pay.

On 12 July 1941, he was convicted by a special court-martial of being AWOL from 21-29 June 1941.  He was sentenced to confinement at hard labor for 
24 days and forfeiture of $10.00 pay.

On 8 September 1941, he was convicted by a summary court-martial of being AWOL from 16-18 August 1941.  He was sentenced to confinement at hard labor for 9 days and forfeiture of $4.00 pay.

On 16 September 1941, he was convicted by a summary court-martial of being AWOL from 2-8 September 1941.  He was sentenced to confinement at hard labor for 7 days and forfeiture of $2.75 pay.

On 30 January 1942, he was convicted by a summary court-martial of being AWOL from 13-23 January 1942.  He was sentenced to confinement at hard labor for 1 month and forfeiture of $13.00 pay.

He was also AWOL from 10-13 August 1940, from 2-4 November 1940, from 
9-17 November 1940, from 21-25 November 1940, from 21-23 February 1941, from 21 March-22 April 1941, from 4-12 October 1941, on 11 November 1941, from 25 November-2 December 1941, and from 28-29 December 1941.  The available records do not show that any disciplinary action was ever taken against the applicant for these offenses.

On 4 May 1942, the applicant was convicted by a general court-martial of “deserting the service of the United States by absenting himself without proper leave from his organization with intent to shirk important service, to wit: accompany his organization to the port of embarkation at San Francisco on 
7 March 1942.”  He was sentenced to confinement at hard labor for 25 years and a DD.  The six previous convictions were considered. 

On 23 May 1942, the findings were affirmed and the sentence was approved, however, the period of confinement was reduced to 10 years, 5 years of this suspended. The DD was ordered duly executed upon completion of his period of confinement.  

On 25 October 1944, the applicant’s certificate of parole was approved.  
He was released from confinement and placed in a parole status.  

On 4 November 1944, a WD AGO Form 53 shows that he was separated, with a DD as result of a general court-martial.  No service computation is shown on this form, but he did serve in excess of 4 years to include time served in confinement.

The applicant applied to the Army Discharge Review Board (ADRB) in 1998.  However, he was not eligible for an ADRB review.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

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

3.  The Board took into consideration the applicant’s contention that he had a personal problem.  However, the Board determined that he had many legitimate avenues through which to obtain assistance with that problem in lieu of absenting himself from his unit in the manner that he did, particularly during World War II.  

4.  There is nothing in the applicant’s record or submitted with his application to indicate that extenuating circumstances mitigated his misconduct.

5.  The applicant’s good post service accomplishments are commendable but these factors do not provide a basis for the Board to grant relief. 

6.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.  Notwithstanding his age and the time that has passed since he was discharged, no bases has been established to grant clemency in this case.

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

__aao___  __vbc___  __le_____  DENY APPLICATION

					

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

INDEX

CASE ID	AR1999028554	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000516	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1944104	
DISCHARGE AUTHORITY	AR 615-364  	
DISCHARGE REASON	144.6800	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A68.00	
2.		
3.		
4.		
5.		
6.