APPLICANT REQUESTS: That his dishonorable discharge (DD) be upgraded to an honorable discharge.
APPLICANT STATES: That his DD was based on isolated acts of discipline. He contends that he attempted to work through the chain of command to solve his problem, that he voluntarily turned himself in to terminate his AWOL and that the punishment that he received was too severe. He believes that he deserves a recharacterization of his discharge as a matter of equity based on the severity of his punishment.
EVIDENCE OF RECORD: The applicant's military records show:
That he enlisted in the Regular Army on 12 September 1940 and was dishonorably discharged pursuant to conviction by a general court-martial (GCM) on 8 December 1945.
On 10 June 1942 he was convicted by a GCM of violation of the 58th Article of War, in that, he deserted the service of the US with intent to shirk the important service of embarkation for duty beyond the continental limits of the US and remained absent for about 6 days.
He pleaded not guilty to the charge but was found guilty and sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances and to be confined at hard labor for 10 years. The US Army Board of Review determined that the findings and sentence were legally sufficient. The confinement portion of the sentence was subsequently commuted to 3 and one-half years time served.
The applicants record shows that he had previously been convicted by a special court-martial on 20 January 1942 for breaking arrest and 19 days AWOL. The record also alludes to additional periods of AWOL and confinement resulting from other inferior court-martial convictions, however, these convictions were not considered by the GCM.
The applicant based his not guilty plea on the fact that he attempted to obtain permission to visit his mother who was ill but it was denied, he did not know that his unit was preparing for embarkation, he voluntarily surrendered after 6 days and that he had no intent of deserting and should, therefore, have been charged with AWOL only.
The applicants first application to this Board was denied on 29 July 1953. His request for reconsideration of that decision was denied on 2 July 1957.
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. That his contentions now, as they have been in past applications, relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.
2. After reviewing the information submitted by him together with that contained in the record, there is no evidence of error or injustice that would warrant a change in the character of his discharge from the service.
3. In view of the foregoing, there appears to be no basis for granting the applicants 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
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