MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            2 April 2002 
	DOCKET NUMBER:   AR2001063615

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Curtis L. Greenway 		Member	
	Ms. Regan K. Smith		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 bad conduct discharge (BCD) be upgraded to a fully honorable discharge.

APPLICANT STATES:  That he was a good soldier and he proudly served in the United States Army from 1946-1949, to include 1 year in Korea without incident.  He adds that he was young at the time of his actions and he believes that the discharge that he received was unjust.  He also believes that he has paid for his mistakes and has been a good man with no convictions on his record since the military.  He submits a copy of his BCD Certificate and a statement in support of his request.

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

At 17 years of age, he enlisted in the Regular Army (RA) in Hawaii on 26 July 1946 for a period of 3 years and training in military occupational specialty (MOS) 063 (Crane Operator).  On 28 August 1946, he arrived in the United States where he completed basic and advanced individual training.  On 22 January 1947, he was assigned to Korea.

There is no evidence of any indiscipline when the applicant was assigned to Korea.  On 5 November 1947, he departed Korea for the United States and was assigned to Camp Stoneman, California, on 3 December 1947.  On 28 January 1948, he was reassigned to Camp Sand Island, Oahu, Hawaii.  

On 14 May 1948, the applicant was convicted by a general court-martial of 
being absent without leave (AWOL) from his unit from 1-29 March 1948 and for feloniously taking and using for his own benefit, without consent of the owner, a motor vehicle (a Willys Jeep) of a value of more than $50.00 with intent to temporarily deprive the owner of his property on 27 March 1948.  He was sentenced to forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a dishonorable discharge. 

On 9 July 1948, the finding of guilty of the felonious taking and use of a vehicle was disapproved.  Only so much of the sentence that provided for confinement at hard labor for 87 days and for forfeiture of $45.00 pay per month for 3 months was approved and duly executed.

On 19 August 1948, the applicant was convicted by a summary court-martial of 
disobeying a lawful order given by a commissioned officer on 5 August 1948.  He was sentenced to forfeiture of $40.00 pay and to confinement at hard labor for 1 month. 

On 8 October 1948, the applicant was convicted by a special court-martial of 
being AWOL from his unit from 30 August-1 October 1948.  He was sentenced to forfeiture of $50.00 pay per month for 2 months and to confinement at hard labor for 3 months. 

On 18 February 1949, the applicant was convicted by a general court-martial of 
feloniously taking and using for his own benefit, without consent of the owner, a motor vehicle (a 1936 Plymouth Coupe) of a value of more than $50.00 with the intent to temporarily deprive the owner of his property on 27 December 1948.
He was sentenced to forfeiture of all pay and allowances, to confinement at hard labor for 2 years, and to be discharged with a BCD. 

On 5 May 1949, the convening authority approved the adjudged sentence.

On 16 May 1949, the applicant was discharged under the provisions of Army Regulation 615-364 with a BCD.  He had completed 1 year, 9 months, and 12 days of active military service.  He also had 373 days lost time due to being AWOL and in confinement.  The applicant was denied clemency; however, on 31 October 1949, he was released from military confinement and placed on parole until 17 August 1950.  

Army Regulation 615-364 sets forth the basic authority for the separation of enlisted personnel for misconduct and provides that a soldier will be given a dishonorable discharge (DD) or BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 this requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses 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. 

3.  The Board has taken into consideration the applicant’s contention that he was young at the time he committed misconduct.  The applicant's declaration of parental consent to enlist is not a matter of record, however, he would have been required to provide such a declaration of parental consent at the time of his enlistment in order to meet entrance qualification standards.  Further, the Board found no evidence that he was any less mature than other soldiers of the same age who successfully completed their military service obligation.

4.  The available records contain evidence that indicates the applicant was a habitual offender who continuously committed acts of misconduct.  He was given several chances to serve out his enlistment with an honorable discharge, but he continued to commit serious offenses, to include wrongful appropriation of privately-owned vehicles.  He has established no basis for clemency.

5.  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

__WTM__  __CLG__  ___RKS _  DENY APPLICATION

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

INDEX

CASE ID	AR2001063615	
SUFFIX		
RECON	 	
DATE BOARDED	20020402 	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19490516	
DISCHARGE AUTHORITY	AR615-364 	
DISCHARGE REASON	A60.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6000	
2.		
3.		
4.		
5.		
6.