MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 August 2001
         DOCKET NUMBER: AR2001055550

         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
Ms. P. A. Castle		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Linda D. Simmons		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)

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APPLICANT REQUESTS: Recharacterization of his dishonorable discharge.

APPLICANT STATES: In effect, that he thought the Presidential pardon he received on 23 December 1966 had corrected his dishonorable discharge. He states that the reason he was absent without leave (AWOL) for 5 years is because the Canadian government implied he should not return to the United States. Further that he was a Canadian citizen and not a United States citizen and that his parents needed him to provide financial assistance to the family. He hopes that by explaining his life history, including a record of work, and character references, the Board will upgrade his discharge.

The applicant states in his personal statement to the Board that his father was born in Waterville, Connecticut (CT) but lived in Canada since toddler age, his whole life. The applicant was born in Canada and was third of fourteen children. At the age of 18 the applicant came to the United States to work (as his father and grandfather had done) at the lumber camps in Maine (ME), Vermont (VT), New York (NY), New Hampshire (NH) and CT. He traveled from state to state so he used the address of a relative living in Berlin, NH as a permanent address.

Upon arrival home the applicant found that his parents had requested that the Canadian government investigate whether their son had to return to the United States after his leave or could he remain in Canada and help them with the farm, the finances and the children. The applicant states that government officials told him he was a Canadian citizen, not a United States citizen, and that he had no business being in the United States Army.

The applicant reluctantly remained in Canada hoping the Army would come and get him. As time passed evidence of record shows he decided to write the US Consulate on 26 January 1957 to establish his status and was notified as to the documentation he would need to present to the United States Immigration and Naturalization Service officer. The applicant left his wife and three children in Canada and reported to Ft Dix, New Jersey on 1 April 1957.

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 reconstructed service records.

Evidence found in the reconstructed record reveals that in 1950 the applicant was drafted from Berlin, NH and upon completion of the physical was rejected and sent home. In 1951 he was again drafted from Berlin, NH but took the physical in CT and was found qualified and after induction was sent to Fort Devens, Massachusetts (MA) for basic training. He graduated from basic training and was assigned to Fort Bragg, North Carolina (NC) where after two months he graduated from combat infantry training. Subsequently, on 28 September 1951 the applicant departed to Canada for 16 days leave prior to his overseas deployment to Germany.

On 15 June 1957 a general court-martial convicted the applicant of violation of the Uniform Code of Military Justice, Article 85 (5 years AWOL). The sentence which was comprised of confinement at hard labor for six months, forfeiture of all pay and a dishonorable discharge was approved as adjudged and was affirmed upon review. The applicant was discharged on 6 September 1957.

The applicant submits the following 20 documents in support of his post-service accomplishments, community service and good character;

         a. Certificate of marriage dated January 1979.

         b. Certificate of his father’s birth on 13 January 1898 in Waterville,
Maine.

         c. Course completion certificate for “Course O” for Oil Heat Service dated 1958-1959.

         d. Certificate of appreciation for “dedicated service” from the Owner’s Association in Bristol, CT.

         e. Diploma from the Commercial Trade Institute for completion of Refrigeration and Air Conditioning dated April 1955.

         f. Certificate of completion of the “Air Flow Seminar” from the Refrigeration Service Engineers Society dated 10 February 1985.

         g. Certificate of Qualification from the Secretary of the State of CT electing the applicant as “justice of the peace” for the town of Bristol, CT from January 73 to January 75.

         h. Certificate of honorary life membership in the Knights of Columbus.

         i. Certification by the state of CT, Department of Consumer Protection to be licensed as an electrical unlimited journey person dated 6 October 2000.

         j. Certification by the state of CT, Department of Consumer Protection to be licensed as a plumbing and piping limited contractor dated 1 November 2000.

         k. Certification by the state of CT, Department of Consumer Protection to be licensed as a heating, piping and cooling unlimited contractor dated 1 September 2000.

         l. Letter of complaint to the applicant as the President of the Southern New England Hockey League, Incorporated.

         m. Two pictures of the Bristol Hockey Team accepting awards with the applicant.

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. The applicant has failed to show to the satisfaction of the Board, evidence to conclude that the dishonorable discharge was incorrect or unjust.

2. The applicant’s trial by general court-martial was warranted by the gravity of the offense. His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3. Evidence submitted to the Board by the applicant shows the Canadian government at the time of the offense advised the applicant to return to his unit in the United States after seeking assistance with the Immigration and Naturalization Services. The applicant’s contentions of being prevented by the Canadian government to return to his Army unit are unfounded. In any case, these issues relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process to include the post trial reviews, and furnish no basis for recharacterization of the discharge.

4. While the Board has taken cognizance of the applicant’s personal and family problems at the time of the offense, such are not considered sufficiently mitigating so as to warrant an upgrade of the discharge.

5. The documentation related to the applicant’s post service accomplishment, his contributions to society and the expressions of support from other sources is noted. However significant these considerations may be they do not outweigh the severity of the offense for which the applicant was convicted and discharged.

6. 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

__lds ___ __rvo ___ ___cp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001055550
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/30
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	1957/09/06
DISCHARGE AUTHORITY	AR
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.00
2.
3.
4.
5.
6.