MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           07 AUGUST 2003                  
	DOCKET NUMBER:   AR2003086036

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas B. Redfern III		Member	
	Ms. Mae M. Bullock		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:  Reconsideration of his request to upgrade his discharge to honorable or general. 

APPLICANT STATES:  In a 30 December 2002 letter to a Member of Congress (MC), the applicant took exception to this Board's conclusions that he received an undesirable discharge for misconduct because of a conviction of a felony and being held by civil authorities.  He states that he has been trying to have his discharge upgraded since 1998.  He recounts his experiences in the Army, and states that he was in combat in Korea until his younger brother was killed.  After his brother was killed, he was assigned to escort the body back home.  He states that his service record in the states was not very good; however, he served overseas without any problems.  He spent over six years in the service, and deserves something better than an undesirable discharge.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 23 January 2001 (AR2000046732).

On 17 February 2001 in response to his 9 April 2001 application to this Board, the applicant was informed that he had not submitted any new evidence that was not previously available to the Board; consequently, there was no basis for resubmitting his request to the Board.  He was also informed that police reports from the Colorado Springs area did not have a bearing on whether or not he was arrested or convicted of a crime in some other area (AR2001056082).   

Army Regulation 615-366, dated 5 February 1954 provides for discharge of enlisted personnel for misconduct (fraudulent entry, AWOL, desertion, conviction by civil court).  Section II of that regulation pertains to AWOL and desertion, and states that an individual who is to be discharged under that section will be given an undesirable discharge.  Section IV of that regulation pertains to conviction by civil court.

Change 2 of the above regulation, dated 3 August 1954, provides for entries on the DD Form 214 (separation document), and states that when an individual is discharged for AWOL, trial waived, the entry on DD Form 214 will be "Section II, AR 615-366-SPN 72."  The entry for conviction by civil court will be "Section IV, AR 615-366-SPN 73." 

Special Order Number 139, dated 6 August 1954, does show that the applicant was discharged effective on 11 August 1954 with an undesirable discharge - under the provisions of Section II, Army Regulation 615-366, SPN 72.  That order, however, does not relate the reason for his 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.  As indicated in the 23 January 2001 Board case, the applicant's records were not available for review, but were probably lost in the 1973 fire at St. Louis.

2.  The only record available that is germane to this case is the above-cited order discharging the applicant on 11 August 1954 with an undesirable discharge.  Unfortunately, the 23 January 2001 Board misconstrued the reason for his discharge.  Section II of Army Regulation 615-366 pertains to discharge for AWOL, not conviction by civil court as indicated in the original Board case.  The applicant's contention that he was not incarcerated in any civil confinement facility during that period is correct.  He was not discharged because of a felony conviction by a civil court, but because of AWOL.  This error is regretted.
  
3.  Nonetheless, and as indicated in the previous Board case, the Board presumes that the discharge proceedings were conducted in accordance with the law and regulations in effect at that time.  The Board notes that a discharge for AWOL under the provisions of the cited regulation also mandated an undesirable discharge.  There is no evidence and the applicant has not provided any to indicate that his undesirable discharge was in error or that there was an injustice done to him.  

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 in the characterization of his discharge.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__AAO__  __TBR___  __MMB _  DENY APPLICATION

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

INDEX

CASE ID	AR2003086036	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030807	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.