APPLICANT REQUESTS:  That his dishonorable discharge (DD), issued as the result of a conviction by a general court-martial, be upgraded to one issued under honorable conditions.

APPLICANT STATES:  That he “. . . served honorably from 1939 to 1947 - all through World War II.  I was involuntarily re-called in 1949 due to Korea.  I got into an altercation with an officer off duty and off post.  I was scared I would get court-martialed so I went AWOL [absent without leave].  I feel my good service should offset the bad.”

COUNSEL CONTENDS:

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.

The applicant was born on 6 May 1920 in Newberry, South Carolina.  He quit school after four years of formal education and began working as a farm laborer before enlisting in the Regular Army on 26 September 1939.  He served until 11 February 1946 when he was honorably discharged in order to reenlist for an unspecified period of time.  This reenlistment also ended in an honorable discharge on 13 August 1947.

The applicant’s available records show that on his initial enlistment, he deserted on 23 February 1940 and remained absent until apprehended in Fayetteville, North Carolina, on 11 July 1940.  Tried by a general court-martial on 1 October 1940, he was convicted and sentenced to a DD, 5 months’ confinement, and total forfeiture of all pay and allowances.  The DD was not executed and the applicant was allowed to return to duty following completion of his sentence.

On 2 February 1941, the applicant again deserted his unit and was apprehended this time in Baltimore, Maryland, on 24 November 1941.  This AWOL resulted in a special court-martial conviction on 26 February 1942 and a 6 month stint in confinement.

The applicant’s record indicates AWOL’s in October 1942, and March and July of 1943.  Additionally, he was court-martialed in May 1942 for failing to obey the order of an officer; in November 1942 for failure to obey the order of an NCO; and in February 1944 for failure to repair.  When he was honorably discharged 
on 11 February 1946 in order to reenlist, the record showed that, from 1939 to 1946, a period of 6 years, 4 months, and 15 days, the applicant had 2 years, 6 months, and 4 days of lost time under Article of War 107 due to AWOL, desertion, and confinement.

The applicant was not recalled to active duty, but voluntarily reenlisted in the Regular Army for 3 years on 2 December 1949.  According to his court-martial record for that enlistment, he was tried and convicted of reckless driving in April 1950.  On 14 November 1951, he was assigned to the Replacement Center (Pipeline) at Camp Stoneman, California, ostensibly for shipment to Korea.  He went AWOL (desertion) and was apprehended by the FBI in Atlanta, Georgia, on 13 November 1952.  At the time of his apprehension, he was living in an apartment with his wife and family and working a civilian job.

The applicant was tried by a general court-martial at Fort McPherson, Georgia, on 8 January 1953.  In his defense, his wife testified that she and their child were living in a small house with eight other people in Simpsonville, Kentucky, when she became ill.  The American Red Cross notified the applicant’s command in California and the applicant was given a 15-day emergency leave.  He returned home to care for his wife and child.  As soon as the applicant returned to his unit, the Red Cross again notified his command that the applicant’s wife was ill.  This time he was denied leave and so he simply went AWOL.  When he got back to Kentucky, he moved his family first to Louisville, then to Florida, and finally to Atlanta.

At his trial and thereafter while he was in confinement, Army psychiatrists argued about the applicant’s mental state.  At trial, psychiatric testimony concluded that, ”Although this man is adjudged not to be insane at the present time, he is certainly psychologically sick . . . .  It is therefore recommended that after his trial, he be hospitalized  for psychiatric treatment.”  While in confinement, his psychiatrist recommended that his sentence be reduced to 1 year.  This recommendation was approved in view of his World War II service and his psychiatric condition.

The applicant served his sentence to confinement at the Branch United States Disciplinary Barracks, Camp Gordon, Georgia.  His DD was executed on 8 June 1953.  He had 1 year, 11 months, and 8 days of creditable service on his enlistment and 577 days of lost time due to AWOL and confinement.  His total net service [including his World War II service] was 7 years, 6 months, and 5 days.
The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 the aforementioned requirement.

2.  While the Board cannot, by law, disturb the finality of a court-martial conviction, it can mitigate the punishment when deemed appropriate.  In this situation, the Board finds that the documented evidence does not justify mitigation.

3.  The applicant had a well established history of AWOL and desertion.  He was tried and convicted by a general court-martial in 1940 and sentenced to confinement and a DD.  In that case, the Army did not execute the DD and allowed the applicant the opportunity to earn an honorable discharge through rehabilitation.  The applicant did not learn his lesson and continued to go AWOL during that enlistment, as well as his final enlistment in 1949.

4.  Although the applicant may have had psychiatric problems, he was not insane and was able to tell right from wrong.  He knew that going AWOL was wrong and that he could be severely punished for it, but he continued to go AWOL nonetheless.  Further, most of his AWOL’s during his World War II service were to disparate locations and, therefore, not related to family problems.  His final AWOL in October 1951 appears to have been a genuine desertion as he had forsaken his military duty to live and work in Atlanta.

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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director