MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 March 2001
	DOCKET NUMBER:   AR2000049778

	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 H. Kern		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Richard T. Dunbar		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 be upgraded to a more favorable discharge.

APPLICANT STATES:  In effect, that he received an honorable discharge from his first enlistment and received a 30-day furlough home at the time he was convicted by civil authorities.  He goes on to state that he should have received a better discharge because his conduct and efficiency ratings were good, that he had received decorations and awards, he had combat service, his record of promotion showed he was a good service member, he has been a good citizen since his discharge and it is unjust for him to have to continue to suffer the consequences of a bad discharge, his record of nonjudicial punishment,        court-martials, and conviction by civil authorities was for minor isolated offenses, his ability to serve was impaired by his youth, immaturity, low aptitude scores, education and deprived background.  Additionally, the punishment he received was worse than most received, his command abused its authority by giving him a bad discharge and he could not adjust to stateside duty.

EVIDENCE OF RECORD:  The applicant's military records were destroyed in the 1973 fire at the National Personnel Records Center at St. Louis, Missouri which destroyed millions of service records.  However, the reconstructed records do contain a copy of his report of separation (WD AGO Form 53-55) which shows:

The applicant was inducted on 4 August 1944 and was shipped to the European Theater of Operation (ETO) on 6 January 1945.  He continued to serve until he was honorably discharged on 2 December 1945 for the purpose of immediate reenlistment.

He reenlisted in Frankfurt, Germany on 3 December 1945 for a period of 18 months and departed the ETO the same day.  He arrived in the United States on 26 December 1945.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, the WD AGO Form 53-55 shows that he was discharged in the rank of private, under other than honorable conditions, on 5 September 1947, under the provisions of Army Regulation 615-366, due to conviction by civil authorities.  He had served 1 year, 9 months and 2 days on his current enlistment and had 506 days of lost time. 

Army Regulation 615-366, in effect at the time, served as the authority for the discharge of enlisted personnel for conviction by a civil court.  It states, in pertinent part, that the commanding general of a service or command are authorized, within their discretion to discharge enlisted men who during their term of service have been finally convicted by a civil court of an offense, the nature of which clearly indicates that the individual is not a suitable person to associate with enlisted men or has been convicted of one of the heinous crimes of treason, murder, rape, kidnapping, arson, sodomy or pandering, any crime of sex perversion, prostitution, any illegal dealing in narcotics or other habit forming drugs, or has been convicted and sentenced to confinement for a period in excess of 1 year in a prison or penitentiary.  An undesirable (Blue) discharge was directed for such discharges.

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.

2.  Accordingly, it must also be presumed that his discharge was properly characterized.

3.  The applicant’s contentions have been noted by the Board; however, they are not supported by either the evidence submitted with his application or the available evidence of record.  Therefore, given the criteria necessary to warrant such a discharge, the board finds his contentions are not sufficiently mitigating to warrant relief when compared to offenses necessary to qualify for such a discharge, his extensive absence and his overall record of service as depicted on his report of separation.

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

___jhk___  ___rtd __  ___clg___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049778	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/03/01	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1947/09/05	
DISCHARGE AUTHORITY	AR615-366	
DISCHARGE REASON	Conv by civil court	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  628	144.6100/a61.00	
2.		
3.		
4.		
5.		
6.