MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  15 June 2000
	DOCKET NUMBER:   AR1999034411

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Ms. Kathleen A. Newman		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:  In effect, that his dishonorable discharge be upgraded to a general under honorable conditions discharge.

APPLICANT STATES:  In effect, that he and a buddy joined the Army to serve together as promised by their recruiter.  The recruiter lied.  His buddy was sent to Germany and he was sent to Korea.  When he returned from Korea, the Personnel Office at Fort Hood told him that if he extended his enlistment for another year, the Army would send him to Germany to be with his buddy.  He extended but the Army did not send him to Germany so he went AWOL.  He got a job to pay for his mother’s medical bills.  She suffered from epilepsy possibly caused by years of physical abuse by her then divorced husband.  He also got married and his wife was expecting a child.  After a year, he was apprehended and sent back to Fort Hood.  He received a court-martial and was sentenced to confinement for 1 year.  He was paroled after 6 months.  From then to today, he has been a good citizen, a deacon and teacher in his church, raised 4 good children, and has never been in trouble or even gotten a traffic ticket.

He did not burn his draft card and he did not burn a flag like some people did during the Vietnam War and then fled to Canada; or get into college so that they would not have to serve this great country.  President Carter pardoned all those people.  The Army’s top sergeant was court-martialed for having sex with female soldiers and he was not dishonorably discharged.  A two star general was court-martialed for sex crimes with fellow servicemen’s wives and he was not dishonorably discharged.  President Clinton pardoned black sailors who mutinied during WW II.  President Nixon was guilty of crimes but was pardoned.  The applicant could go on but that would not change anything.  If a person is poor and has only a 7th grade education, he does not have a chance in this great nation.  He would fight for this nation again if he was young again.

He has records that his great-great-grandfather fought in the War of 1812, his great-grandfather fought in the Civil War, and his father was in the Army in 1920 and during WW II, and he helped build the ALCO Highway in Alaska with the Army.  He was also in the Marshall Islands in 1951 working for the Navy testing A bombs and H bombs.  Being in the service in his family goes way back and he is the only black sheep.  He has dishonored his family name.  If he could go back and change it, he would.  So if the Board cannot help him, he will understand that when one is poor and has no education, one has to live with it.  He can take his dishonorable discharge to his grave so his children and grandchildren will not know.

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

That his personnel records cannot be found and are presumed destroyed in the 1973 fire in the National Personnel Records Archive in St. Louis.  The court-martial record gives a military history of the applicant.  He enlisted in the Regular Army on 19 July 1950.  He took basic training at Fort Ord, California, and was assigned to Fort Bliss, Texas, for eight weeks of training in anti-aircraft artillery.  While at Fort Bliss, he was assigned to the 363rd Ordnance Ammunition Company.  His company was shipped to Korea.  He served with his company in Korea, Japan, and Okinawa for about 14 months.  He rose to the rank of Private First Class.

His company’s duty was to keep the front lines supplied with ammunition.  While in Korea, stored ammunition exploded near the applicant causing minor fragmentation wounds to his head and causing him severe shock.  The applicant was hospitalized for about two weeks.  When he was released back to his company, he found that he was extremely nervous.

The applicant was rotated back to the United States and assigned to the Service Battery for the 27th Armored Field Artillery Battalion, 1st Armored Division, at Fort Hood, Texas.  It was at this location that the applicant reports that he extended his enlistment, but the available records provide no confirmation of this.

The applicant was sent on temporary duty to the Non-Commissioned Officer’s Academy at Fort Hood.  On or about 23 January 1953, the applicant went AWOL from this assignment and remained AWOL until apprehended on 23 April 1954.  He was returned to Fort Hood where he was charged with desertion under article 85 of the UCMJ.  He was found guilty and sentenced to a dishonorable discharge, confinement at hard labor for one year, and forfeiture of all pay and allowances.  He was so discharged on 17 June 1954.

The court-martial was given appellate review by the office of the Judge Advocate General of the Army.  The court-martial was found to be correct in law and fact.  The sentence was affirmed on 6 August 1954.

The applicant is authorized to wear the Korean Service Medal with three service stars, the United Nations Defense Medal, and the Korean Presidential Citation.

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.  The applicant was given a dishonorable discharge for desertion.  This type of discharge is appropriate considering the seriousness of the crime of desertion.  While the applicant asserts that there were mitigating circumstances of hardship at home and that the Army did not keep its promise to station him with his buddy, these circumstances do not justify the serious crime of desertion.  There is no error or injustice found in the court-martial or sentence.
2.  The applicant is complemented for his good citizenship, community service, success as a father and husband, and his patriotism.  He is encouraged to continue these worthwhile efforts.  However, these cannot compensate for desertion of his fellow soldiers and desertion of his sworn duty to his country and its constitution.

3.  If he has sufficient justification, the applicant may apply for a Presidential Pardon by writing to the Pardon Attorney, 4th Floor, 500 First Street, NW, Washington, DC 20530.  There is no promise or guarantee that a pardon will be granted.

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

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

INDEX

CASE ID	AR1999034411	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000615	
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	Discharge Document	
2.		
3.		
4.		
5.		
6.