MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 March 2002                   
	DOCKET NUMBER:   AR2001063863

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		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 be upgraded.

APPLICANT STATES:  That he has successfully raised five children and each has either served in the Federal Government through military service or is serving their community through public service.  His youthful indiscretion took place after his return to the United States.  Post-traumatic stress disorder cannot be ruled out as a contributory cause to his departing absent without leave (AWOL).  He served his country in time of war, in combat, when the Army needed him the most.  His unit was awarded the Distinguished Unit Citation.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire in 1973.  Information contained herein was obtained from his record of trial and a memorandum for the Secretary of the Army dated 3 March 1954 responding to the applicant’s application to the Board for a change in his discharge.  (The recommendation was that the Board not consider his case due to a lack of error or injustice.)

The applicant enlisted in the Army on 23 August 1949 for three years.

The applicant was convicted by a summary court-martial on 25 May 1950 for insubordination and disrespect to a noncommissioned officer.  

The applicant arrived in Korea on 6 November 1950.  He was convicted by a summary court-martial on 23 November 1950 for being drunk in a public place.  He departed for Japan on 15 January 1951.  On 21 February 1951, he was convicted by a special court-martial of assault on a Japanese policeman, appearing in an off-limits area, and for being drunk and disorderly and was in confinement in Japan from 21 February until 7 June 1951.  

General Orders 457, Headquarters, Far East Air Forces date 28 September 1951 awarded the Distinguished Unit Citation to the 440th Signal Aviation Construction Battalion for heroism from 1 October to 31 December 1950.

The applicant was convicted by a summary court-martial in June 1952 for having incapacitated himself for duty through indulgence in intoxicating liquor.  He was convicted by a summary court-martial in July 1952 for failing to report to his appointed place of duty.  .

On 5 September 1952, the applicant pleaded guilty to and was convicted by a general court-martial of being AWOL from 16 July to on or about 11 August 1952. He was sentenced to a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for 3 months.  After he had been found guilty, he offered evidence in mitigation.  He stated that he got married in Tijuana, Mexico about two months before his trial.  He did not obtain a marriage certificate so he was unable to get an allotment for his wife.  Because of this fact, he went AWOL and went to Las Vegas, NV and got married a second time, obtaining a marriage certificate which he subsequently used to make out an allotment for his wife.  He went AWOL because he had a lot of grocery bills and he was receiving only $10.00 a month and was unable to support his wife.  After going AWOL, he worked to get enough money to take care of his bills and then returned to military service.  

On 8 October 1952, the Board of Review, United States Army, affirmed the findings of guilty and sentence.  

General Court-Martial Order Number 1190, Headquarters, Camp Cook, CA dated 7 November 1952 ordered the applicant’s sentence to be duly executed, but the unexecuted portion thereof was suspended for eight months, at which time, unless the suspension was sooner vacated, the suspended portion would be remitted without further action.

General Court-Martial Order Number 43, Headquarters, 7th Armored Division, Camp Roberts, CA dated 9 February 1953 vacated the suspension and ordered the unexecuted portion of the applicant’s sentence to be duly executed.  Apparently the suspension was vacated because the applicant had been arrested by civilian authorities and convicted for battery for apparently beating his wife while drinking in a tavern.

On 5 March 1953, the applicant was discharged with a bad conduct discharge pursuant to his conviction by court-martial.  He had completed 2 years, 10 months, and 23 days of creditable active service and had 230 days of lost time.

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.  The Board notes that the applicant’s disciplinary problems began before he ever arrived in Korea.  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 given his record of prior convictions.

3.  The Board is cognizant of the fact his unit was awarded the Distinguished Unit Citation; however, the available evidence of record shows that the applicant served for only a very short overlap period during the unit’s period of distinguishing heroism and there is no evidence to show he was awarded a personal decoration during that period.  While the Board is cognizant of the applicant’s good post-service conduct and the pride he has taken in the raising of his children, this factor does not warrant the relief requested.

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

__fne___  __le____  __tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2001063863	
SUFFIX		
RECON		
DATE BOARDED	20020328	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.