MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 January 2001
	DOCKET NUMBER:   AR2000046732

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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:  In effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD). 

APPLICANT STATES:  In effect, even after all the times he was absent without leave (AWOL) he at no time underwent a trial by court-martial and normally just returned to duty. 

EVIDENCE OF RECORD:  The applicant’s military records were not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost in that fire.  

The evidence does include a National Archives (NA) Form 13038, dated 
10 September 1992.  This document confirms that the applicant was inducted into the Army of the United States on 5 April 1948 and that his service was terminated by an UD on 11 August 1954.  

Also on file is Special Order Number 139, dated 6 August 1954, issued by Headquarters, Transfer Station, Camp Carson, Colorado, which authorized the applicant’s discharge, effective 11 August 1954.  This order indicated that the applicant received an UD, under the provisions of section II, Army Regulation 615-366, by reason of conviction of a felony and in the hands of civil authorities.  

Army Regulation 615-366, in effect at the time, provided the authority for discharging enlisted personnel for misconduct.  Separation action was to be taken when a member was convicted of a felony and was in the hands of civil authorities.  An undesirable discharge was normally considered appropriate for members separated under this provision. 

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.  The Board noted the applicant’s request for an upgrade to his discharge because he was never tried or convicted by a court-martial.  However, after a careful review of the available evidence, the Board finds this factor is not sufficiently mitigating to warrant an upgrade to his discharge. 

2.  The applicant’s records were not available to the Board for review and there are no facts and circumstances concerning the specific events that led to the applicant’s discharge from the Army.  However, there is a valid Special Order on file that confirms the applicant received an UD for misconduct based on his being convicted of a felony and being held by civil authorities. 

3.  In the absence of evidence to the contrary, the Board presumes that the discharge proceedings were conducted in accordance with law and regulations applicable at the time, and that the character of the applicant’s discharge is commensurate with his overall available record of service.  

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

__wtm___  ___ls ___  ___teo __  DENY APPLICATION

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

INDEX

CASE ID	AR2000046732	
SUFFIX		
RECON		
DATE BOARDED	2001/01/23	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1954/08/11	
DISCHARGE AUTHORITY	AR 615-366	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.