MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 August 2000                   
	DOCKET NUMBER:   AR2000040816

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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 be overturned and he be paid back pay plus interest for the period of time he would have been back in the Army.

APPLICANT STATES:  That the Army was aware that he was being held by civilian authorities and could not return to duty.  He was told that the Army had nothing more to do with him, so after his confinement was over he believed he was out of the Army.  He did not know he was still considered to be in the Army until he was picked up for being absent without leave (AWOL).  He was then charged with being AWOL (double jeopardy).

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire in 1973.  The information contained herein was obtained from his Record of Trial and from alternate sources.  

After having had prior service for which he was discharged for minority, the applicant enlisted in the Regular Army on 23 March 1951.

The applicant was convicted by one summary and three special courts-martial for AWOL (from 23 to 26 April 1951; 21 May to 18 June 1951, for which his sentence included confinement at hard labor for 83 days; 27 August to 2 November 1951, for which his sentence included confinement at hard labor for 6 months; and      16 April to 25 May 1952, for which his sentence included confinement at hard labor for 4 months).

On 15 November 1954, the applicant pleaded guilty to and was convicted by a general court-martial of violation of the Uniform Code of Military Justice, Article 85 (desertion) in that he absented himself without authority on 27 October 1952, with the intent to remain away permanently, and did remain so absent in desertion until he was apprehended on or about 27 October 1954.  He was sentenced to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for 1 year.

At his trial, the applicant testified, in part, that he had been in the hospital, he went home on pass and he was home about a week.  He became involved in a civil offense and was held by civilian authorities.  After his civil trial he was in custody for about a year.  After his release he thought he was out of the Army and went home.  He also testified “I am not saying that I did not intend to desert when I left of course.  It was during this thirty-odd or forty-odd days that I was gone at the time I intended to desert that I would have been guilty of that charge. But the fact I was apprehended and held and from the time they released me I was under the impression that I was out of the Army.  Therefore if I wanted to change my mind during that year and a half I was either being held or I couldn’t have come back…”
On 7 December 1954, the Board of Review, U. S. Army affirmed the findings of guilty and the sentence.

On 3 January 1955, the applicant was dishonorably discharged.  

The Manual for Courts-Martial United States 1984, 1994 edition explains Article 85, desertion, as desertion with intent to remain away permanently.  Desertion with intent to remain away permanently is complete when the person absents himself without authority with the intent to remain away therefrom permanently.  A prompt repentance and return, while material in extenuation, is no defense.  The maximum punishment for desertion terminated by apprehension is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

Title 10, U.S. 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 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.  The Board notes that the applicant was not charged with being AWOL.  He was charged with and convicted of desertion.

3.  The Manual for Courts-Martial United States 1984, 1994 edition states that  desertion with intent to remain away permanently is complete when the person absents himself without authority with the intent to remain away therefrom permanently.  The applicant testified that it was his intent to desert when he left.  Considering his prior record of almost continuous AWOL, the Board concludes that the fact the applicant was held by civil authorities for most of his period of absence is immaterial.  The Board concludes he had no intention of returning to military control whether he had been held by civil authorities or not.  Therefore, trial by court-martial was warranted by the gravity of the offense charged.  His plea of guilty was considered in giving him less than the maximum sentence to confinement.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

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

__gdp___  __clg___  __alr___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040816	
SUFFIX		
RECON		
DATE BOARDED	20000824	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.