MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 February 2001
	DOCKET NUMBER:   AR2000049571

	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. John N. Slone		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Melvin H. Meyer		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 bad conduct discharge (BCD) be upgraded.  

APPLICANT STATES:  In effect, that his receiving a BCD was unjust given the atmosphere at the time.  He claims that the reason he was absent without leave (AWOL) from his unit was to check on his mother in Memphis, Tennessee.  He also indicates that during his service he contracted tuberculosis for which he is still being treated to this day.  He finally indicates, although without total clarity, that there was some element of racial prejudice on the part of a lieutenant involved with the BCD portion of his court-martial sentence being imposed.  

COUNSEL STATES:  In effect, that the Board consider that a review by the command Staff Judge Advocate (SJA) at the time inferred that the BCD portion of the court-martial sentence should be suspended.  Further, counsel points out that since 1953, the applicant has led a respectful life and while he made mistakes as a youth, his punishment should not continue for its own sake at this point.  Finally, counsel indicates that the applicant is suffering from tuberculosis and hypertension, is 69 years old, and at this late date should be granted an upgrade to his discharge for the good of his conscience as well as an act of justice.

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 Form 13038 (Certificate of Military Service), which was prepared on 29 September 1986.  This document confirms that the applicant was a member of the Regular Army from 11 October 1951 to 6 November 1953 and that this period of service was terminated with a BCD.  

Also on file is a copy of the applicant’s trial by court-martial, which confirms that on 21 August 1953 he was tried by general court-martial for being AWOL from his unit between 26 June and 5 August 1953.  It also shows that he plead and was found guilty of this charge.  The resultant sentence included 30 days of confinement at hard labor, a forfeiture of $35.00 and a BCD. 

In arriving at the sentence imposed, the court considered two previous summary court-martial convictions of the applicant.  The first on 8 August 1952 for being AWOL from 30 June to 31 July 1952 and the second on 10 June 1953 for two specifications of AWOL, from 1 to 3 June 1953 and on 5 June 1953.  

On 27 August 1953, the general court-martial convening authority, acting on the recommendation of the SJA, suspended the execution of the BCD portion of the applicant’s sentence for six months.  At the end of this period the suspended portion of the sentence would be remitted without further action, unless sooner vacated for cause. 

On September 1953, the applicant’s court-martial was reviewed by the United States Army Board of Review.  After a review of the entire court-martial record and having found the findings of guilty and sentence as approved correct in law and fact, finally affirmed them.  

On 6 November 1953, Special Orders Number 50, published by Headquarters, Signal Corps Center, Fort Monmouth, New Jersey, directed the vacation of the suspended BCD sentence and ordered that the sentence be carried into execution and the applicant was discharged accordingly.  

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.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and is only empowered to change a discharge if clemency is determined to be appropriate. 

2.  The Board noted the contentions of the applicant and counsel, acknowledges his post service good conduct, and is empathic with his medical problems.  However, after carefully examining the available evidence, the Board finds these factors are not sufficiently mitigating to warrant clemency in this  case.

3.  The available evidence confirms that the general court-martial convening authority, based on the advise of his SJA, did suspend the execution of the BCD portion of the applicant’s sentence for six months in order to provide him an opportunity for continued service and to ultimately receive an honorable discharge.  

4.  However, during this six month period the suspended sentence was vacated for cause and the BCD was ordered executed by the appropriate authority.  The specific reason the suspended sentence was vacated is not on file, however, it could only have been accomplished for cause based on some act of misconduct on the part of the applicant.  In the opinion of the Board, this shows that the applicant was provided an ample opportunity for rehabilitation and failed to take advantage of that chance to upgrade the character of his discharge. 

5.  The Board took specific note of the applicant’s allegation of racial bias, and while the Board would never let stand an action taken that was predicated on discrimination, in this case there is no evidence to suggest that racial prejudice played any role in the applicant’s BCD.  

6.  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

___js____  ___ra ___  __mm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049571	
SUFFIX		
RECON	1956/03/21	
DATE BOARDED	2001/02/27	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1953/11/06	
DISCHARGE AUTHORITY	General Court-Martial 	
DISCHARGE REASON	BCD	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.