MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            22 June 2000                  
	DOCKET NUMBER:   AR1999028893

	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. Luther L. Santiful 		Chairperson	
	Mr. Arthur A. Omartian 		Member	
	Mr. Roger Able 		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 general discharge (GD) be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  In effect, that he believes that the GD he received is inequitable because it was based on one isolated incident after 4 years of honorable service.  He was discharged due to a court-martial conviction for assault on another soldier.  The assault occurred when the soldier tried to hit him.  He reacted out of fear in an attempt to protect himself.  Further, the applicant contends that because he is of Hispanic descent a language barrier existed between him and his court appointed legal counsel.  He submits a Department of Veterans Affairs Form 21-4138, and a copy of his General Discharge Certificate in support of his request.

COUNSEL CONTENDS:  That the applicant was young at the time that he committed the offenses and was discharged.  He understands that his offenses were in violation of the Uniform Code of Military Justice, but he is not a criminal.  Soldiers in similar situations received nonjudicial punishment and were fined rather than discharged.  

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

That he completed a prior honorable period of service in the Army of the United States from totaling 1 year, 2 months and 8 days from 16 November 
1950-23 January 1952.  He served in Korea from 25 October 1953-8 March 1954.  He was awarded the Purple Heart with 1 Oak Leaf Cluster, the Good Conduct Medal, the National Defense Service Medal, the Korean Service Medal with 3 bronze service stars, the United Nations Service Medal, the Distinguished Unit Emblem and the Combat Infantryman Badge.

On 24 January 1952, he reenlisted in the Regular Army for a period of 3 years.  He served in military occupational specialty (MOS) 1812 (Heavy Weapons Infantryman) and MOS 1844 (Cannoneer).  

On 8 April 1952, the applicant was assigned to Fort Buchanan, Puerto Rico.

On 14 August 1952, he was convicted by a summary court-martial of missing movement and of being absent without leave (AWOL) from 17 July-11 August 1952.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, to be confined at hard labor for 1 month and forfeiture of $28.00 pay.

On 12 October 1953, he was assigned to Germany.  On 1 February 1954, he was convicted by a special court-martial of committing an assault on another soldier by holding him and striking him on the head with a dangerous weapon (a chair).  He was sentenced to be confined at hard labor for 6 months and forfeiture of $34.00 pay per month for 6 months.  He remained in confinement from 2 February-6 March 1954.  On 23 March 1954, he was transferred back to the United States to be involuntarily released from active duty, by direction of the Secretary of the Army. 

On 5 April 1954, he was discharged under the provisions of Army Regulation 
615-365, for the convenience of the government, by order of the Secretary of the Army.  He had completed 2 years, and 13 days of active military service on the enlistment under review.  He also had 59 days lost time due to being AWOL and in confinement.

During the period of enlistment under review, he was awarded the Army of Occupation Medal (Germany), and the National Defense Service Medal.

Evidence of record indicates the applicant applied to the Army Discharge 
Review Board in 1999, which was past that board’s 15-year statute of limitation.

Army Regulation 615-365, in effect at the time set forth the basic policy, and guidance for the prompt elimination of enlisted personnel for the convenience of the government.  Paragraph 2 specified that an individual could be discharged by the plenary authority of the Secretary of the Army.  Either a general or an honorable discharge could be awarded.

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 conduct or finality or the conduct 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 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's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.

3.  The Board concluded that the record of two court-martial convictions for serious misconduct during his last 24 months of service outweighed his 
14 months of good service during his first enlistment.

4.  The Board took into consideration the applicant’s contention that he received a GD due to a court-martial conviction in which a language barrier existed between him and his appointed counsel.  This contention provides no basis for the upgrade of his discharge.  If true, this matter should have been resolved during the court-martial process.  

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  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____  __aao____  __ra____  DENY APPLICATION

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

INDEX

CASE ID	AR1999028893	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19540405	
DISCHARGE AUTHORITY	AR615-365	
DISCHARGE REASON	A07.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0700	
2.		
3.		
4.		
5.		
6.