MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:             19 December 2000   
	DOCKET NUMBER:   AR2000039926

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Raymond J. Wagner		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 his military records be corrected by upgrading his dishonorable discharge to an honorable discharge.

APPLICANT STATES:  In essence, he relies on his military records.  He submits his DD Form 214 (Report of Separation from the Armed Forces of the United States) in support of his application.  

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

He was inducted into the Armed Forces of the United States on 25 April 1951.  He began his basic training at Fort Knox, Kentucky on 9 May 1951.  

The applicant was absent without leave (AWOL) during his basic training from 
11-20 June 1951.  He was placed in pre-trial confinement for 8 days and may have been AWOL for 2 more days from 30 June-1 July 1951.  On 5 July 1951, he was found guilty by a summary court-martial of the 9-day AWOL in mid-June.  He was sentenced to forfeiture of $40.00 pay and 20 days hard labor without confinement.

Following completion of his basic training at Fort Knox on or about 21 August 
1951, he was reassigned to Fort Sam Houston, Texas, for advanced training as a medical specialist.  However, he failed to report and was carried AWOL from 
29 August-28 September 1951, when he was apprehended and returned to military control at Fort Belvoir, Virginia.    

On 25 October 1951, he was convicted by a Special Court-Martial (SPCM) of being AWOL for 30 days.  He was sentenced to forfeiture of $50.00 pay per month for 3 months and confinement at hard labor for 3 months.  On 16 January 1952 he was released from confinement and on 17 February the remaining portion of his sentence of confinement was suspended for 6 months.  He remained at Fort Belvoir and began advanced training on 1 February 1952.   

He was again AWOL from 2-11 February 1952.  On 27 February 1952 he was convicted by a SPCM of violation of two articles of the Uniform Code of Military Justice (UCMJ), i.e., Article 86 for being AWOL from 2-11 February and Article 
134 for  breaking restriction on 2 February 1952.  His approved sentence included forfeiture of $50.00 pay per month for 2 months and to be confined at hard labor for 2 months.  He was released from confinement on 26 April 1952.  On 29 April 1952, he again went AWOL until apprehended on 7 August 1952.

On 16 September 1952, the applicant was convicted by a general court-martial 
of one specification of violation of Article 85, UCMJ for desertion from 
29 April to 7 August 1952.  He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and to be confined at hard labor for 2 years.  The previous convictions were considered. 

On 29 September 1952, the Commanding General, United States Army Military District of Washington, the general court-martial convening authority, approved the sentence, subject to appellate review.  All aspects of the sentence were to be duly executed except that portion pertaining to a dishonorable discharge. 

On 3 December 1952, General Court-Martial Orders Number 1236, were issued by the Commanding General, Second United States Army at Fort Meade, Maryland, announcing that the sentence having been affirmed in accordance with Article 66 of the UCMJ, and Article 71c, UCMJ, having been complied with, the sentence would be duly executed.  The remainder of his confinement would be completed at the Branch United States Disciplinary Barracks, New Cumberland, Pennsylvania.  

On 17 February 1953, the applicant was discharged, with a dishonorable discharge, under the provisions of Army Regulation 615-364, by reason of conviction by court-martial.  He was credited with 4 months and 4 days of active service with 504 days lost time due to being in AWOL or in confinement.  He remained at New Cumberland as a prisoner to complete his sentence.  

Clemency and parole were denied on 21 May 1953, by the Classification Board at New Cumberland.  The applicant had indicated at that time that he did not desire restoration to military status.  He was released from confinement on 
24 March 1954 at the expiration of his sentence (apparently reduced due to good behavior). 

The statutory authority under which this Board was created (Title 10, United States Code, section 1552) precludes any action by the Board which would disturb the finality of the court-martial conviction.  The Board may grant clemency as to the sentence in meritorious cases.  

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 this requirement.  

2.  Trial by court-martial was warranted by the gravity of the offense charged, desertion, especially when the Armed Forces of the United States and the United Nations were involved in extended combat operations against  hostile enemy forces in Korea.  

3.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

4.  The applicant's military records and his application contain no matters upon which the Board may grant clemency.  

5.  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

__JPH___  _KLW___  ___RSW_  DENY APPLICATION

    Carl W.S. Chun
    Director, Army Board for Correction
    Director

INDEX

CASE ID	AR2000039926	
SUFFIX		
RECON		
DATE BOARDED	20001219	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19530217	
DISCHARGE AUTHORITY	AR 615-364	
DISCHARGE REASON	A105.01	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A106.00	
2.	A110.00	
3.		
4.		
5.		
6.