MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 April 2000                   
	DOCKET NUMBER:   AR1999030801

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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 all his service records be corrected to remove the words “in confinement.”

APPLICANT STATES:  That the war in Germany was over when he was ordered by his commander to dig a hole 6 foot by 6 foot so his commander could put his cigarette butt out in it.  He was court-martialed the following day.  He was not represented by counsel.  He was asked if he disobeyed a direct order.  When he said he did and started to explain he was immediately ordered to be silent.  He was sentenced to 7 years at hard labor.  He was held in five different prisons in Germany and France.  In the last one, a general asked him what he had done.  He explained, the general checked and then released him within 48 hours.  

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire in 1973.  The information contained herein was obtained from reconstructed records and from his Report of Trial.

The applicant was inducted into the Army on 17 April 1944.  He arrived in the European Theater of Operations on 2 November 1944.  

On 1 June 1945, the applicant was tried by a general court-martial for disobeying a lawful order from his superior officer to dig a sump.  Two assistant defense counsels were present.  The applicant had testified in his own behalf.  He testified that he went on sick call that morning for diarrhea and was given some medicine.  He returned to the company area and went to work.  After he returned to the company area he complained to his commander of his illness but was told he had a sump to dig.  He asked if he could dig it the next day.  He was told "no.” He told his commander he wished he could but he could not.  His commander asked him if he knew he could be court-martialed for his refusal.  He said he understood.  The order was repeated in the presence of another lieutenant and he again refused.  The applicant’s adjudged sentence was a dishonorable discharge, a forfeiture of all pay and allowances, and confinement at hard labor for 5 years.  

The Corps Judge Advocate’s review noted that he personally interviewed the applicant and while he found he had a surly attitude toward the Army and toward authority he believed it was possible to rehabilitate him.  The Judge Advocate recommended approval of the sentence except that the dishonorable discharge be suspended.  The sentence was so approved.

General Court-Martial Orders 622, Theater Service Forces, European Theater dated 28 September 1945 suspended the unexecuted portion of the applicant’s sentence (along with 33 others) and restored him to duty upon his release from confinement.  He was restored to active duty on 16 October 1945.  He departed the European Theater of Operations in April 1946 and was honorably separated on 12 May 1946.

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 the aforementioned requirement.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and sentence to confinement were effected in accordance with applicable law and regulations.  The evidence of record shows that, contrary to the applicant’s contention, he did not receive an order to dig a 6 foot by 6 foot hole so his commander could throw his cigarette butt into it; he was represented by counsel at his trial; he testified extensively on his own behalf at his trial; and the initial steps to restore him to duty were taken by the court-martial convening authority.

3.  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

__rvo___  __sk____  ___le___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030801	
SUFFIX		
RECON		
DATE BOARDED	20000405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.