MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 October 2000                  
	DOCKET NUMBER:   AR2000045574

	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	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		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:  Reconsideration of his previous application to correct his records by upgrading his dishonorable discharge to honorable.

APPLICANT STATES:  In effect, the applicant defers to his counsel.

COUNSEL CONTENDS:  That the applicant’s conviction might not have occurred if he had been given a chance “to air his grievances.” The applicant had been on patrol in the same area before and did not want to go back.  If he had been given a chance to talk to his platoon leader, he might have obeyed his orders or been excused from going.  Counsel contends that the record does not show that the applicant would not have gone if he had been given an opportunity to speak to his platoon leader prior to the platoon’s departure.  He also contends that the suspension of the dishonorable discharge was improper because no explanation for the reason is now available. Counsel notes that there is no evidence of misconduct in confinement and that the applicant received significant clemency and was released long before the expiration of his 15-year sentence.  He cites a clemency document on which it was noted that the applicant was a “Negro” as evidence of racial discrimination.  Discrimination is also cited as reason for the applicant’s failure to file a timely request.  Counsel contends that official records show that, during World War II, African American soldiers were disciplined at a higher rate than whites. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to 
reflect the Board's original consideration of his case on 25 September 1991 (COPY ATTACHED).  On that occasion the Board found that there was no evidence to show that it was in the interest of justice to grant the requested relief or excuse the failure to timely file.  

Counsel’s presentation is new argument that requires Board consideration.

The available records show that on 25 May 1945 the applicant was convicted by a general court-martial of misbehavior before the enemy on 7 April 1945 by failing to advance with his command.  He was sentenced to a dishonorable discharge, total forfeitures, and confinement for 15 years.  The dishonorable discharge was suspended until the completion of confinement.

The suspension of the discharge was vacated effective 6 December 1945.  The general order doing so did not cite a reason.  The discharge was executed on 
10 December 1945.

On 9 May 1946 the commandant of the confinement facility concurred in a clemency recommendation to remit confinement in excess of 2 years.  The Data for Clemency Consideration form contains a block entitled “Other 
Recommendations and Comments.  That block bears the notations “Negro.” and “Copy SJA review furnished AGO this date.”  The form also shows that, prior to the court-martial offense the applicant’s military record had been satisfactory.  He had served approximately 25 months without an offense of record and had been in combat in Italy for 3½ months.

On 16 July 1946 the sentence to confinement was reduced by clemency action to 6 years. The applicant was paroled on 24 December 1947.  On 11 October 1948 (less than 3½  years after his conviction) the remaining sentence to confinement was remitted.

The Articles of War provided that the maximum authorized punishment for the offense of misconduct before the enemy was death.

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.  The applicant’s reconstructed record is incomplete.  General orders do not normally provide reasons or rationale for the actions taken.  In the absence of evidence to the contrary, the presumption of regularity must be applied to the vacation of the suspended sentence. 

3.  There is no evidence that racial prejudice was a significant factor in this case. The Board notes that the sentence was lenient in comparison to the maximum authorized punishment and that the confinement actually served amounted to approximately one-fifth of that to which the applicant had been sentenced.  The Board also notes that the applicant had served satisfactorily for 25 months and had been in combat for 3½ months before the court-martial offense.  

4.  After considering all aspects of the case, the Board finds the dishonorable discharge was and is appropriate.

5.   Prior to reaching a determination that it was not in the interest of justice to excuse the failure to timely file, the Board looks at an entire file.  The Board considers the statute of limitations only after all other aspects have been considered and it has been concluded that there is no basis to recommend a correction of the records.  When the Board determines that an error or injustice 
exists, it routinely recommends relief in spite of a failure to submit the application 
within the 3-year time limit.  Although the decisional document may not state that the Board considered the merits of the case, the display of the pertinent details of applicant’s service record and the circumstances of the case tends to show that it did.  The Board does not deny applications simply because they were not submitted within 3 years.  Furthermore, arguments about failure to timely file are moot, because this review of the entire case is a consideration of the merits.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  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

__mkp __  ___esc __  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000045574	
SUFFIX		
RECON		
DATE BOARDED	20001024	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.