MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 August 2002
	DOCKET NUMBER:   AR2002070733

	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	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Curtis L. Greenway		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 dishonorable discharge be upgraded to a general or an honorable discharge.

APPLICANT STATES:  That he was never allowed to defend his actions and that the type of discharge that he received is too harsh considering the nature of his offenses.

EVIDENCE OF RECORD:  The applicant's military records show:

He was inducted into the Army on 28 December 1942 and he successfully completed his training as a laborer.

The applicant was convicted by a summary court-martial on 2 July 1943, of being absent without proper authority.  He was sentenced to restriction to the company area for 15 days and a forfeiture of pay.

On 22 July 1943, he was convicted by a summary court-martial of unlawfully carrying a concealed weapon.  He was sentenced to a forfeiture of pay.

On 28 September 1943, the applicant was again convicted by a summary 
court-martial of being absent without proper authority.  He was sentenced to confinement at the company stockade for 30 days and a forfeiture of pay.

He was convicted by a special court-martial on 22 December 1943, of being absent without proper authority.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of pay.

On 19 June 1944, the applicant was convicted by a general court-martial of feloniously taking, stealing and carrying away sixty pounds of sugar and fifty pounds of red kidney beans (government rations) and for leaving his post before he was properly relieved.  He was sentenced to a dishonorable discharge, confinement at hard labor for 10 years, and a total forfeiture of pay.  During the court-martial proceedings, he was represented by counsel and he testified in his own behalf.  He pleaded not guilty and he stated that he did not intend to steal or willfully take anything but that he was helping out a sergeant major friend of his in the British Army by getting him supplies.  The Staff Judge Advocate’s review noted that the taking of government rations was aggravated by the fact that the offense was committed while he was posted as a guard to safeguard the security of those rations.

On 8 December 1944, the convening authority approved the sentence as adjudged.  Apparently, shortly thereafter a substantial period of the approved confinement was remitted or the applicant was placed on parole.  Accordingly on 16 February 1945, after his release from confinement, he was dishonorably discharged as a result of a court-martial conviction.
The Articles of War Manual for Courts-Martial for the period covering 1 April 1928 through 31 January 1949 governed the Armies of the United States with respect to all court-martial processes taken during the applicant’s period of enlistment.  It provided that the maximum punishment for the violation of Article 86 (any sentinel who leaves his post before he is regularly relieved) was confinement at hard labor for 1 year, a dishonorable discharge and a forfeiture of all pay and allowances.  However, the limitations upon punishments for violations of Articles of War 58, 59, and 86 were suspended until further order, as to offenses committed after 3 February 1942 by Executive Order Number 9048 dated 3 February 1942.  Therefore, the maximum punishment that the applicant could have received for leaving his post before he was regularly relieved 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.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the acts of misconduct for which the applicant was convicted.

3.  The Board has noted the applicant’s contentions; however, they are unsupported by the evidence of record.  The record clearly shows that he testified during his trial and that he was properly represented by counsel.

4.  The Board has also noted that the applicant’s confinement at hard labor and dishonorable discharge for stealing sugar and red beans may appear to have been too severe.  However four previous convictions were considered during the court-martial proceedings.   Accordingly, the Board finds that his contentions are not sufficiently mitigating when compared to his overall undistinguished character of service.

5.  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.

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

__mmd__  __rwa___  _clg_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002070733	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/20	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1945/02/16	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  713	144.7110.	
2.  715	144.7200	
3.		
4.		
5.		
6.