MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 March 2002                   
	DOCKET NUMBER:   AR2001065427

	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:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, Jr.		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 he would like his record cleared or that his dishonorable discharge be upgraded.  

APPLICANT STATES:  That his commander targeted him because he unknowingly went out with the commander’s girlfriend.  After that, the commander kept giving him a summary court-martial every chance he could.  As for taking the jeep, he had a dispatch for the jeep in his possession, given him by the motor pool.  After the sergeant came for him and his buddy at the gasthaus in their company area and told one of the guards to walk them back to their quarters, he and his buddy ran off to town but they were picked up and restricted. He feels they were poorly defended and represented by their military attorney.  He is now 71 years old, has been an outstanding citizen of his community, and has no criminal record.  He waited so long because he was told he did not have a chance to win an upgrade plus all his records were lost when his duffle bag was stolen upon his release.  Now he would like a more favorable discharge before he dies.  No supporting evidence is provided although the applicant mentions personal recognition from clergy, his police record, his community work, and his job record.

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.

The applicant enlisted in the Regular Army on 15 July 1949.  

On an unknown date, the applicant was convicted by a summary court-martial of operating a government vehicle at an excessive speed and gambling.  On an unknown date, he was convicted by a special court-martial of larceny of three cartons of cigarettes.  

On 9 December 1952, the applicant and one other soldier were convicted by a general court-martial of wrongfully appropriating a ¼ ton vehicle and of escaping from lawful custody.  Testimony revealed that the vehicle in question was assigned to a third soldier and that an order of the battalion commander forbade anyone from driving a vehicle assigned to another.  The applicant’s commander and first sergeant testified that they were the only individuals empowered to authorize the use of the unit’s vehicles on the night of the incident and that neither authorized either of the defendants to drive the vehicle in question.  The applicant was found guilty contrary to his plea and a sentence of a dishonorable discharge, 2 years confinement at hard labor, and a forfeiture of all pay and allowances was adjudged.  The defense counsel filed motions for a finding of not guilty as to both charges; however, the findings and the sentence were approved. 

On 4 February 1953, the U. S. Army Board of Review affirmed the findings of guilty and sentence.  
On 16 February 1954, the applicant was discharged with a dishonorable discharge pursuant to his sentence by court-martial.

Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

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.  There is no evidence to show the applicant’s attorney was incompetent or that his commander targeted him for court-martial for unwarranted reasons.  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 cognizance of the applicant’s contention that his post-service conduct was good but that factor does not warrant the relief requested.  Considering the circumstances in this case, there is no evidence that would justify granting clemency on the sentence.  

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

__slp___  __sk____  __eja___  DENY APPLICATION

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

INDEX

CASE ID	AR2001065427	
SUFFIX		
RECON		
DATE BOARDED	20020319	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.