MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            26 September 2000                  
	DOCKET NUMBER:   AR2000044561

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter 		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 upgraded to honorable.

APPLICANT STATES:  That his dishonorable discharge is not proper or equitable.  The Wisconsin Department of Veterans Affairs provided a brief with the applicant’s application.  In summary, counsel describes the applicant’s military service and the decorations he was awarded prior to his court-martial.  Counsel states, in effect, that after the applicant’s first assignment in the Asiatic-Pacific Theater he experienced symptoms of “combat fatigue” and that this should have been noted at the time.  He goes on to state that the applicant was court-martialed for assault when he was only defending himself and that he tried to prevent injury as any soldier would have done.  Counsel addresses the preparation of the applicant’s trial and segregation in the Army.  He cites the applicant’s exemplary work history since his discharge.  In conclusion, counsel contends that the applicant deserves a recharacterization of his separation to fully honorable.  In support of his application, he submits copies of his WD AGO Forms 53-55 (Enlisted Record and Report of Separation).          

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

The applicant was inducted on 22 May 1943.  He served as a longshoreman in the Asiatic-Pacific Theater of Operations from 14 December 1943 through
27 February 1946 and was honorably discharged on 4 March 1946 for immediate reenlistment.  He reenlisted on 5 March 1946 for service in the Pacific Theater.  The applicant served as a longshoreman in the Asiatic-Pacific Theater from 
5 March 1946 through 10 November 1947.

On 23 December 1948, the applicant was convicted by general court-martial of committing assault upon a Chief Warrant Officer by cutting his arm with a knife.  He was sentenced to be dishonorably discharged from the service, forfeit all pay and allowances and to be confined at hard labor for 2 years.  The convening authority approved the sentence on 3 February 1949.

Accordingly, the applicant was dishonorably discharged under the provisions of Army Regulation 615-364 on 3 February 1949.  He had served 5 years, 8 months and 18 days of total active service and had 68 days lost due to confinement.  

Prior to discharge, the applicant underwent a separation physical examination and was found not qualified for military duty as a result of his dishonorable discharge.  He was given a physical profile of 111111.

Army Regulation 615-364 (Enlisted Personnel/Discharge Dishonorable and Bad Conduct), in effect at the time, provides that an enlisted person will be dishonorably discharged pursuant only to an approved sentence of a general court-martial or military commission imposing dishonorable discharge. 
Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.

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.  Trial by court-martial was warranted by the gravity of the offense charged.  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.

2.  Notwithstanding counsel’s contention that the applicant’s symptoms of “combat fatigue” should have been noted at the time in question, medical evidence of record shows that the applicant was found medically fit at the time of his discharge with a physical profile of 111111.  

3.  The Board noted the contentions of the applicant and his counsel.  The applicant’s military service and decorations; and claim of good post-service employment are not sufficiently mitigating to warrant upgrading his discharge given the seriousness of the charge for which he was court-martialed.  The applicant and counsel have failed to convince the Board through the evidence submitted or the evidence of record that the applicant’s discharge was unjust and should be upgraded.

4.  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.

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

AAO____  MHM____  TFB____  DENY APPLICATION

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

INDEX

CASE ID	AR2000044561	
SUFFIX		
RECON		
DATE BOARDED	20000926	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19490202	
DISCHARGE AUTHORITY	AR 615-364  	
DISCHARGE REASON	As the result of a general court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.