MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:  13 April 2000
	DOCKET NUMBER:   AR1999030405

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Sherri V. Ward		Member	
	Ms. Celia L. Adolphi		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 discharge under other than honorable conditions be changed to honorable.

APPLICANT STATES:  In an attached statement from an unknown author they claim the applicant joined the Army with the intent of a career.  While home on leave he fell in with bad company and failed to return to duty.  He and another individual were arrested, tried, and convicted of a robbery that he denied participating in.  His conviction was flawed because of a faulty line-up identification and flawed instructions to the jury.  In 1974 the Governor granted him a pardon.  This erroneous conviction kept the applicant from fulfilling his military obligations as he has completed all of his other obligations.  Now that the Governor has set aside his conviction the applicant should be granted this request based on his conduct over the past 50 years.  He should be able to finish out his life without this taint on his records.  Character reference letters from family members, a pastor, and a family friend are submitted in support of his application.

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

That he was inducted and entered active duty on 27 March 1943 at almost 20 years of age.  He was assigned to Camp McCoy, Wisconsin in ordinance maintenance and on 31 August 1943 he departed on 15 days furlough.  On 15 September 1943 he was reported AWOL.  A 22 September 1943 telegram to his father notified him of his AWOL status and possible classification as a deserter in time of war which could lead to loss of citizenship and a possible death sentence.  He was declared a deserter effective 15 October 1943.

On 11 December 1943 civil authorities arrested the applicant, a fellow deserter, and two escaped convicts.  The police report notes that all were suspected of numerous robberies, burglaries, and auto thefts with warrants issued.  The applicant had a loaded.38 caliber automatic in his possession when arrested.

A follow-up military police report notes that the applicant was a member of a gang that police had been trying to apprehend for 6 weeks, suspected on a number of burglaries and robberies.

On 25 May 1944 the applicant and his fellow deserter were convicted by a jury of First Degree Robbery while Armed with Deadly Weapons.  A follow-up military police report notes that the applicant was sentenced to prison for 5 years to life effective 5 June 1944.

On 16 June 1944 the commander requested the applicant be discharged for conviction by civil authorities.  The separation authority, a lieutenant general, approved the request and directed issuance of a “blue discharge” (under other than honorable conditions).
Effective 19 July 1944 the applicant was discharged under authority of Army Regulation 615-360.  He had 5 months and 19 days creditable service and 9 months and 5 days lost time.  He was released from prison on 22 July 1946 and was released from the custody of parole on 4 September 1949.

The applicant applied for a pardon on 19 November 1973.  The Governor granted the pardon on 21 November 1974.  The letters from his family and friends attest to his hard work, integrity, and sense of fair play who is a good father and good citizen.

Army Regulation 615-360, in effect at the time, set forth the policy and procedures for separation of enlisted personnel.  It provided for cases of soldiers who were convicted by civil authorities and for those who had a history of AWOL or desertion.  Normally a blue discharge certificate stating only the pertinent regulation, but neither a reason for separation nor a characterization of service, was used to identify this other than honorable discharge.

The Manual for Courts-Martial, table of maximum punishments, shows that conviction by court-martial for desertion that is terminated by apprehension can result in a dishonorable or bad conduct discharge and 5 years confinement.  In time of war the court can also recommend the death penalty.

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.  There is nothing in the evidence of record or submitted by the applicant that would mitigate the commission of a serious violent crime that he committed while in a deserter status during a time when his contemporaries were fighting and dying for the defense of their country.  The fact that he eventually received a pardon from the Governor does not negate or set aside his conviction as if it had never happened as the applicant has claimed.

2.  Absent the conviction by civil authorities, he would have been subject to trial and conviction by court-martial of desertion or AWOL in excess of 30 days terminated by apprehension and separated with a dishonorable or bad conduct discharge with up to 5 years confinement.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of service.

4.  The Board notes the five character reference letters but finds no reason to change the character of his discharge on the grounds of clemency.  The positive aspects of the applicant’s post service adjustment and conduct are far outweighed by the enormity of his crime and the fact that his military record is virtually devoid of redeeming 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 the aforementioned 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

__FE___  __SW___  ___CA__  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030405	
SUFFIX		
RECON		
DATE BOARDED	20000413	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19440719	
DISCHARGE AUTHORITY	AR 615-360	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.