MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            12 August 2003    
	DOCKET NUMBER:   AR2003084839

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Frank C. Jones		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 honorable.

APPLICANT STATES:  That he was charged with sodomy and he did not commit that crime.  Under today's standards, his court-martial would be dismissed.  In a previous application (not considered by the Board), he stated that he was unable to communicate effectively in English (he is of Mexican descent) and was fearful that if he spoke in his behalf it would hurt his defense.  The only trouble he got into was with civilians during wartime in Germany.  He was awarded a dishonorable discharge for something that did not relate to his military duties.  He served out his punishment in prison and was still awarded a dishonorable discharge.  Since his separation, he has been in no trouble and his prior service was outstanding.  

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

He was born on 5 December 1921.  He was inducted into the Army on              29 December 1942.  He arrived in the European Theater of Operations on          7 March 1944.

On 26 May 1945, the applicant was convicted, in a common trial with one other soldier (not of Mexican descent), by a general court-martial of having committed sodomy by forcibly having carnal connection per anum with a female German civilian; of having committed sodomy by forcibly having carnal connection per os with a female German civilian; and of having committed sodomy by forcibly having carnal connection per os with another female German civilian; all offenses being committed on 22 March 1945.  Neither soldier spoke in his own defense.  The applicant was sentenced to 10 years confinement (reduced from 15 years as adjudged) and to a dishonorable discharge.  The maximum sentence possible was death.

The applicant was discharged on 21 February 1946 with a dishonorable discharge pursuant to his conviction by court-martial.

Effective on or about 20 December 1948, the applicant was granted, as a special extension of clemency at the Christmas season by reason of his good conduct in confinement, remission of the unexecuted portion of his sentence to confinement only.

Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s 

service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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 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.

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 misconduct for which the applicant was convicted.

3.  Contrary to the applicant's contention, under today's standards a man could be convicted of sexual misconduct of a more "innocuous" nature (e.g., "date rape") than that for which the applicant was convicted.  Contrary to the applicant's contention, good order and discipline in the Army does not stop at one's military post of duty but extends to behavior in the civilian community (even the civilian community of a near-defeated enemy) during off-duty hours.  

4.  The dishonorable discharge was a part of the applicant's sentence.  It was not an additional punishment awarded after "he served out his punishment in prison." The Board also notes that the maximum punishment for the offenses for which he was convicted was death.  He was sentenced only to 10 years confinement, about 7 years of which were remitted.

5.  The Board is cognizant of the applicant's contention that his conduct prior to the incident and his post-service conduct have been good; however, this factor does not warrant the relief requested.

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

__tsk___  __wdp___  __fcj   ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003084839	
SUFFIX		
RECON		
DATE BOARDED	20030812	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.