MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 March 2002
         DOCKET NUMBER: AR2001062412

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Ronald E. Blakely		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 his dishonorable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that at the time of the incident that led to his discharge, he was leaving the post on emergency leave to be at the side of his sick mother. He was interviewed and coaxed into signing a statement without the benefit of counsel, with the promise to be able to continue on his emergency leave. However, he was then imprisoned and the statement was used against him. He also states that he had a receipt for the camera and photos and that his record over the past 46 years will show that he has never been a thief. He further states that he has worked for the Post Office, as a Reserve New York policeman, and 17 years as a New York bus driver (retired in 1985). He continues by stating that he knows what happened to him was because of the time in which he was living and his age at the time.

EVIDENCE OF RECORD: The applicant's military records were partially destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri, which destroyed millions of service records. However, the surviving records show:

He enlisted in Miami, Florida, on 18 September 1953 for a period of 3 years. He completed his training at Camp Gordon, Georgia, and remained there for assignment to a transportation company.

On 21 January 1954, he was convicted by a summary court-martial of being absent without leave (AWOL) from 28 December to 30 December 1953. He was sentenced to a forfeiture of pay and restriction.

He was convicted by a summary court-martial on 19 February 1954 of being AWOL from 14 February to 17 February 1954. He was sentenced to hard labor without confinement for 7 days, a forfeiture of pay and restriction.

He was again convicted by a summary court-martial on 25 June 1954 of being absent from his place of duty. He was sentenced to a forfeiture of pay and restriction.

On 27 July 1954, he was convicted by a general court-martial of stealing a camera belonging to another soldier. He was sentenced to confinement at hard labor for 6 months, forfeiture of all pay and allowances and a dishonorable discharge.

A review of the available records shows that at the time, the applicant was residing in the barracks with other soldiers and one of his fellow soldiers had purchased a camera from the base exchange. When the applicant saw the camera, he informed the other soldier that he had previously had a camera just like it and that it had been stolen. Shortly thereafter, the camera came up missing and was reported by the owner. At the time, the applicant was packing his bags to go home on leave. The commander ordered his bags searched at the time and the camera was discovered. The applicant, at the time, claimed that it was his camera. The available evidence indicates that the applicant confessed (in writing) to a military police lieutenant to taking the camera from the other soldier’s footlocker. The statement was entered into evidence at the trial by court-martial and the applicant contended at that time that he made the statement only because he was told by the lieutenant that the statement could not be used against him and that he would not get his leave until he made a statement. The lieutenant was called to testify to the accusation made by the applicant and denied that any such promise had been made. The applicant asserted that he had purchased the camera from the base exchange and that it was his camera.

The Army Board of Review affirmed the findings and sentence of the general court-martial on 17 September 1954.

The applicant submitted an appeal of his case to the United States Court of Military Appeals on 5 October 1954 and his appeal was denied.

Although not fully explained in the available records, they show that he was convicted by a special court-martial on 31 January 1955 of breaking restriction. He was sentenced to confinement at hard labor for 3 months and a forfeiture of pay.

A review of his confinement records show that the applicant was less than a model prisoner and that he was denied further restoration to duty and clemency.

On 25 February 1955, he was dishonorably discharged pursuant to the sentence of a general court-martial. He had served 9 months and 13 days of active service and had 240 days of lost time due to AWOL and confinement.

On 22 March 1956, the applicant wrote a letter to The Adjutant General of the Army stating that an error had been made at the trial by court-martial in which he was convicted of stealing a camera and was given a dishonorable discharge. He went on to state that he had purchased the camera from the post exchange at Camp Gordon in October 1954, that he had to sign for the camera at the time to certify that it was for his personal use, that he pawned it in February 1955 and that he redeemed it in March 1955. He asserted that it was never proven that the camera he was accused of stealing was the property of the other soldier and that if the record of trial was reviewed, it would show that he was right. He also asserted that when his name was cleared, he desired to return to active duty with the Army.

The Adjutant General of the Army responded to his letter on 19 April 1956, informing him that he was ineligible to enlist in the Regular Army and that the only agency that could change a dishonorable discharge was this Board.

Title 10, Unites States Code, section 1552, the authority under which the Board acts, provides, in pertinent part, that the Board can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

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. 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.

2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case and his otherwise undistinguished record of service during such a short period of time.

3. The Board has noted the applicant’s contentions that he did not steal the camera, that he purchased the camera, and that it was not proven that the camera was not his. However, the Board sees no evidence to show that any attempt to prove his ownership has ever been presented. The Board finds it unlikely that such evidence would have been overlooked at the time, if all that was required was to check exchange or pawn shop records to confirm his ownership.

4. The Board can not under its statutory grant of authority review the legitimacy of a conviction nor the sufficiency of action taken by reviewing authorities, such as that undertaken here by a division of the United States Army Legal Services Agency pursuant to Article 69a, UCMJ. Further, the applicant has failed to provide evidence upon which any clemency action could be based.

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

__dj ____ __gp____ __reb ___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001062412
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/26
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	1955/02/25
DISCHARGE AUTHORITY	GCM
DISCHARGE REASON	CM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 675	144.6800/A68.00/DD
2.
3.
4.
5.
6.