MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 March 2001
	DOCKET NUMBER:   AR2000049653

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Christopher J. Prosser		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 undesirable discharge be upgraded to either a general or honorable discharge.

APPLICANT STATES:  In effect, that he was unjustly discharged under other than honorable conditions for a misdemeanor civil offense that occurred after his time had been completed and that he has had to endure this injustice for 50 years.  He further states that he should have been discharged on 23 August 1953 but was not discharged until 27 August 1954.  He also states that his time was up when he actually got into trouble and that had the Army discharged him on time, he would have received the honorable discharge that his records will show that he deserved.  He goes on to state that he has been married since 1959, has five grown children and that all are productive members of society. 

EVIDENCE OF RECORD:  The applicant's military records were partially destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri which destroyed millions of service records.  However, the surviving records show:

He enlisted in Chicago, Illinois on 23 August 1950 for a period of 3 years.  He completed his training and was transferred to Camp Breckinridge, Kentucky. 

He was convicted by a summary court-martial on 3 February 1951 for being absent without leave (AWOL) from 30 January to 1 February 1951.  He was sentenced to restriction for 15 days.

On 19 February 1951 he was again convicted by a summary court-martial of being AWOL from 12 February to 15 February 1951 and two specifications of breaking restriction.  He was sentenced to confinement at hard labor for 30 days, reduction to the lowest enlisted rank and a forfeiture of pay.

Shortly thereafter, he was transferred to the Far East Command (FECOM).  He initially arrived in Japan and was subsequently transferred to Korea for duty as an infantryman.

On 11 July 1952 he was convicted by a special court-martial of being AWOL from 10 March to 14 March 1952, from 3 April to 3 May 1952 and for breaking restriction.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

The evidence of record also shows that he was AWOL from 15 May to 24 May 1952.  However, the record is silent as to any punishment imposed. 

The applicant again went AWOL on 4 February 1953 and remained absent in a deserter status until he was arrested and confined by civil authorities on 3 September 1953.  He was charged with three counts of rape and on 13 October 1953 he plead guilty to contributing to the delinquency of a minor.  He was sentenced to 4 months of confinement by the Superior Court of Los Angeles, California.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his report of separation (DD Form 214) shows that he was discharged under other than honorable conditions on 31 December 1953 under the provisions of Army Regulation 615-366, for misconduct due to conviction by civil authorities.  He had served 1 year, 11 months and 20 days of total active service and had 506 days of lost time due to AWOL and confinement.  He was awarded the Combat Infantryman Badge, the Army Occupation Medal (Japan), the United Nations Service Medal, and the Korean Service Medal with three bronze campaign stars.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

Army Regulation 615-366, in effect at the time, provided for the administrative discharge for misconduct of personnel in a deserter status who are subsequently returned to military control or are convicted by civil authorities.  It provided that an undesirable discharge would be issued.

Department of Defense Military Pay and Entitlements Manual provides the criteria for establishment of creditable service.  It provides, in pertinent part, that time lost for AWOL or confinement in excess of 24 hours that has not been excused or in which an individual has been found guilty in a trial by court-martial is not creditable service.

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.  In the absence of evidence to the contrary, it must be presumed that the applicant was administratively discharged in accordance with applicable laws and regulations in effect at the time, with no procedural errors that would jeopardize his rights.  Accordingly, it appears that his discharge was properly characterized.

2. The applicant’s contentions have been noted by the Board and appear to be without merit.  At the time the applicant was arrested by civil authorities, he was in a deserter status. Lost time is not creditable service and as such does not count towards the fulfillment of a contract.  Therefore, had he been returned to military control either before or after his conviction by civil authorities, he would have been subject to trial by court-martial and had he been retained in the service, would have been required to make up for all of his lost time before his contract would have been satisfied.  It appears that the Department elected to exercise its rights through the administrative discharge process.

3.  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.

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

__js_____  __cjp____  ___le____  DENY APPLICATION

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

INDEX

CASE ID	AR2000049653	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/03/29	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1953/12/31	
DISCHARGE AUTHORITY	AR 615-366 	
DISCHARGE REASON	MISCONDUCT/CONV CIV AUTH	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627	144.6100/A61.00	
2.		
3.		
4.		
5.		
6.