MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:
	DOCKET NUMBER:   AR1999030089

	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.

	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 (DD) be upgraded to honorable.

APPLICANT STATES:  In effect, that his job in the Army was to guard POWs at Anderneck and to search small towns for weapons; that he had a German girlfriend in a small town and when he attempted to visit her, German men blocked his path to her house; that his girlfriend had been threatened by the Germans because she was dating an American; that he was apprehensive when approached by the German men and he fired his weapon into the ground advising them to stay back; that one of the rounds he fired accidentally killed one of the German men.  Since he left the Army he has led an exemplary life, has been married to the same woman for 50 years; and, that he has never been in trouble with the law. 

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

The applicant’s military records were lost or destroyed in the National Personnel Records Center fire in 1973.  Information herein was obtained from the record of his trial by court-martial and from GSA Form 6954 (Certification of Military Service) provided to the applicant on 8 November 1979.

On 30 June 1944 the applicant was inducted into the U.S. Army.

In September 1944 he was convicted by a special court-martial of 18 days AWOL.  Information is not available on sentence imposed.  

On 8 September 1945 he was convicted by a summary court-martial for one day of AWOL.  Information is not available on the sentence imposed.

On 8 November 1945 the applicant was convicted by a general court-martial for violating the 93rd Article of War, for manslaughter.  The evidence of record shows that he pleaded not guilty to “willfully” killing a German national and he testified that he believed the Germans were hostile and that he fired two shots into the ground when they started to crowd in towards him.  The prosecution failed to prove intent and the applicant was adjudged guilty of unlawful homicide due in large measure to voluntary intoxication.  

On 28 November 1945 the sentence was adjudged, and ordered executed.  The applicant was sentenced to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for 3 years.  The sentence was approved, but the execution of the dishonorable discharge was suspended until the applicant’s release from confinement.  He was confined at the Loire Disciplinary Training Center, Le Mans, Sarthe, France.

On 6 March 1947 the applicant’s request for clemency was denied.  It was determined that he had not served adequate time for the offense committed, and that he possessed antisocial and irresponsible tendencies.

On 27 November 1948 the applicant was discharged from the Army with a dishonorable 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.  Trial by court-martial was warranted by the gravity of the offense 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.

2.  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 the aforementioned requirement.

3.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to change the characterization of the discharge only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  

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

________  ________  ________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999024157	
SUFFIX		
RECON		
DATE BOARDED	19991103	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19560726	
DISCHARGE AUTHORITY	AR 635-208  	
DISCHARGE REASON	7900	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.9217		
2.0100		
3.		
4.		
5.		
6.