PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            22 May 2003       
	DOCKET NUMBER:   AR2002082338

	I certify that hereinafter is recorded the true and complete record of the proceedings 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 L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Gail J. Wire		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his dishonorable discharge be upgraded.

3.  The applicant states that he is 81 years old and dying of heart disease.  He would like to get rid of this dishonorable discharge.

4.  The applicant's military records were lost or destroyed in the Military Personnel Records Center fire in 1973.  Information contained herein was obtained from his Report of Trial and from reconstructed records.

5.  The applicant was inducted into the Army in February 1944.  He served in the European Theater of Operations where he was awarded the Combat Infantryman Badge and, based upon that award, the Bronze Star Medal.  He was honorably separated on 30 March 1949.  He was recalled to active duty on 4 October 1950. He was honorably discharged on 7 December 1951 for the purpose of immediately reenlisting on 8 December 1951.

6.  On 15 January 1952, while at Fort Leonard Wood, Missouri, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 9 to on or about 13 January 1952.  

7.  On 2 April 1952, while at Fort Leonard Wood, Missouri, the applicant was convicted by a special court-martial of breaking restriction.  

8.  Apparently, the applicant was assigned to the 372d Engineer Aviation Battalion, Eglin Air Force Base, Florida, sometime after 2 April 1952.

9.  On 28 April 1952, the applicant was convicted by a special court-martial of being AWOL from 10 to on or about 22 April 1952 and of breaking restriction.

10.  On 17 December 1952, the applicant was convicted by a general court-martial of being AWOL from on or about 29 April to on or about 15 October 1952. He was sentenced to a dishonorable discharge, to forfeit all pay and allowances, and to be confined at hard labor for 6 months.  The applicant, his spouse, and his sister had testified at his trial that he departed AWOL to go home and take care of his family.  Due to an administrative change in the source of allotment checks, his spouse last received an allotment check in January 1952.  The Red Cross could not help in a timely manner.  He asked for but could not get a leave to go home.  He went home to get a job and earn enough money to tide his family over until the allotment would restart and he could return to the Army.

11.  On 29 January 1953, the Board of Review, U. S. Army affirmed the findings of guilty and the sentence.  

12.  During annual clemency hearings in 1953, clemency was disapproved.

13.  On 12 May 1953, the applicant was discharged, with a dishonorable discharge, pursuant to his sentence by court-martial.

14.  Title 10, U. S. Code, section 1552(f) states that, with respect to records of courts-martial tried or reviewed under the Uniform Code of Military Justice, the Board's action may extend only to action on the sentence of a court-martial for purposes of clemency.  

CONCLUSIONS:

1.  The Board notes that the applicant had previously been convicted by summary and/or special courts-martial for basically the same offense (AWOL).    However, the Board also notes that it appears these instances of AWOL occurred after the allotment problem to his family started.  The Board believes there is a reasonable presumption that those earlier AWOLs were related to his family's financial problem.

2.  Still, the Board notes that the applicant was an experienced soldier.  There is no evidence to show he attempted to resolve his family's financial problems by more accepted means (i.e., trying to obtain a Red Cross loan or sending his family money orders).

3.  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, considering the length of the applicant's AWOL, a punitive discharge would have appropriately characterized the misconduct for which he was convicted.  

4.  However, the Board concludes that a dishonorable discharge was too harsh.  Although the applicant's AWOL occurred during a time of war, he was stationed in Florida at the time, not in a combat zone.  The Board accepts the applicant's testimony that he was only trying to help out his family after the Government improperly stopped his allotment as a mitigating factor and concludes it would be equitable to upgrade his discharge to a bad conduct discharge.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was separated from the service with a bad conduct discharge on 12 May 1955.

2.  That the Department issue to the applicant a Bad Conduct Discharge Certificate, dated 12 May 1955, in lieu of the Dishonorable Discharge of the same date now held by him.

3.  That the applicant be issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting the above corrections.

BOARD VOTE:  

__rvo___  __sk____  _gjw____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond v. O'Connor_
		        CHAIRPERSON

INDEX

CASE ID	AR2002082338	
SUFFIX		
RECON		
DATE BOARDED	20030522	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.