PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:         31 January 2001
	DOCKET NUMBER: AR2000043117

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. James C. Hise		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Walter T. Morrison		Member	
	Mr. Raymond J. Wagner		Member	
	Mr. Roger Able		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein. 

	The applicant did appear before the Board and was represented by counsel.

	The Board considered the following evidence:

Exhibit A - Application for correction of military records
Exhibit B - Military Personnel Records (including advisory opinion, if any)
Exhibit C - Case Summary
Exhibit D - Live testimony and any evidence introduced during the hearing

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected to expunge his court-martial, or show that he received an Honorable Discharge.

3.  The applicant states that he defers to his counsel.  He submits letters and a credit report in support of his request.

4.  The applicant’s counsel states that the applicant had inadequate legal representation; that there was a failure to rehabilitate; that false information was presented; that he has had good civilian, post-service conduct; that he has had a lengthy time bearing bad service discharge; and, that current standards would produce different results today.

During their appearance before the Board, the individual with counsel stressed the applicant’s basic training experiences and his failure to receive the training he felt he was entitled to as his reason for absenting himself, on both occasions.  Additionally, counsel indicated that the applicant deserted prior to the initiation of hostilities in Korea.

5. The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.

6.  The applicant was born on 3 September 1932.

7.  On 6 September 1949, he enlisted in the Army for 3 years.

8.  On 17 March 1950, he was convicted by a Summary Court-Martial for being absent without leave (AWOL) for the period 25 February to 13 March 1950.  His age was 17 years, 6 months and 15 days at the time.  His punishment is not a matter of record.

9.  On 29 December 1950, he was convicted by a General Court-Martial of desertion.  He was absent from 21 March to 16 November 1950 (7 months and   26 days).  The desertion commenced prior to the start of, but extended well into, the Korean Conflict.  He was over 18 at the time.  His sentence included a dishonorable discharge (DD), forfeiture of all pay and allowances (TF), and confinement at hard labor (CHL) for 1½ years.

10.  On 24 January 1951, a Board of Review found the record of trial to be legally sufficient to support the findings of guilty and the sentence.

11.  On 31 January 1951, that portion pertaining to the DD was executed.

12.  On 1 August 1951, The Adjutant General remitted so much of the sentence to CHL in excess of 1 year and 3 months.

13.  The Articles of War, then in effect, and the Uniform Code of Military Justice, currently, indicate that the maximum sentence based on legally sustained findings of desertion is death, during time of war.  Otherwise, the maximum sentences are DD, CHL for 1½ years, and TF and DD, CHL 2 years (may be suspended during time of war), and TF, respectively.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

CONCLUSIONS:

1.  At the time, a qualified attorney was required to represent soldiers at general court-martials.  There is a presumption that this court-martial was no exception.

2.  There is no known effective method of rehabilitation for convicted deserters.

3.  The information the applicant and counsel consider to be false was taken directly from an official, legal document over 50 years old for which the supporting documentation is not available for review.

4.  It is apparent that the applicant has had good civilian post-service conduct and it has been a lengthy time that he has borne his dishonorable discharge; however, his case is no different from other individuals convicted by general courts-martial and given dishonorable discharges.

6.  Currently, during time of war, the maximum punishment remains death as it was under the Articles of War under which the applicant was tried and convicted.

7.  There is no evidence in support of contentions the applicant was entitled to specialized engineer training.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

RECOMMENDATION:

That the applicant’s request for correction of his records be denied.

DISSENT:  One member of the Board dissented to denial of the applicant’s request.  The Board member recommended the applicant’s request be granted in total.  The member opined that the Army failed to honor an enlistment contract made to the applicant to be trained as an engineer.

Two of the four Board members, who recommended denial of the applicant’s request to expunge his court-martial conviction and sentence, also recommended the applicant’s characterization of service be upgraded to undesirable, based on his post service conduct.

			James C. Hise
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043117	
SUFFIX		
RECON		
DATE BOARDED	20010131	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19510131	
DISCHARGE AUTHORITY	 . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.0000	
2.		
3.		
4.		
5.		
6.