MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 October 2002
         DOCKET NUMBER: AR2002074866

         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:

Ms. Irene N. Wheelwright		Chairperson
Mr. Walter T. Morrison		Member
Mr. Charles Gainor		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: That his undesirable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that there were extenuating circumstances that led to his special court-martial convictions on 31 March 1954 and 28 May 1954. He goes on to state that he had injured himself the night before the reveille formation that he missed and it was difficult for him to stand. In regards to his not knowing his general orders, he contends that the first sergeant shocked him with an electrical field phone device that caused him to have a temporary lapse of memory. In regards to his failure to go to work when ordered, he contends that he had injured his knee and had an infected tooth. He was refused permission to go on sick call and the pain made working unbearable. He continues by stating that consideration should also be given to the discrimination that he and other blacks faced during that time. He contends that his first sergeant made racial comments towards blacks and while it was not the sole cause for his discharge, it served as a contributor. He further states that he has been a model citizen since his discharge who is active in his church and community and he believes he has suffered the disgrace of an undesirable discharge long enough. In support of his application he submits the records of trial from two special court-martials, copies of his reports of separation (DD Form 214), and four character references from a retired judge, a pastor, a sheriff, and a mayor.

COUNSEL CONTENDS: That the applicant served honorably for 168 days before he was honorably discharged for the purpose of reenlistment. He was selected for special duty as a corporal of the guard based on his past performance on guard duty, appearance and general knowledge. Given his excellent post-service accomplishments, he should be favorably considered for an upgrade of his discharge.

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

He was inducted in Little Rock, Arkansas, on 20 March 1951 and on 27 September 1951, he was honorably discharged for the purpose of immediate reenlistment. He reenlisted at Fort Stewart, Georgia, on 28 September 1951, for a period of 6 years.

On 12 January 1954, he was convicted by a summary court-martial of being absent from his place of duty on 14 December 1953. He was sentenced to a reduction to the pay grade of E-2.

He was again convicted by a summary court-martial on 24 February 1954, of disobeying a lawful order from a superior NCO on 8 February 1954, and for failure to obey a lawful order on 7 February 1954. He was sentenced to a forfeiture of pay and restriction for 30 days.

He was convicted by a special court-martial on 12 March 1954 of feigning a mental lapse on 3 March 1954, by stating that he did not know his general orders, for the purpose of avoiding guard duty and of failure to go to his place of duty (Reveille formation). He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

He was again convicted by a special court-martial on 28 May 1954, while serving his confinement, of disobeying a lawful order from a superior noncommissioned officer on 22 April 1954, to go to work. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay. It is also noted that the record of trial provided by the applicant contains a Certificate/letter from the dispensary surgeon in which the surgeon opines that he and the orthopedic consultant at the hospital believed that the applicant showed some degree of malingering. Additionally, the applicant was examined by a medical officer on 22 April 1954. The findings were negative and he was returned to duty.

During his trial by court-martial, he made an un-sworn statement to the effect that he disobeyed the order to go to work because his leg hurt. He also stated that he was not allowed to have his own counsel and that he had always had a bad deal in the Army. The applicant was represented by a regularly appointed defense counsel in the rank of captain.

While the facts and circumstances surrounding his discharge are not available, the applicant’s DD Form 214 indicates that he was discharged under other than honorable conditions on 10 September 1954, under the provisions of Army Regulation 615-368, for unsuitability. He had served 3 years and 2 days of total active service and had 168 days of lost time due to confinement.

There is no evidence to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

A review of the third party statements submitted by the applicant with his application indicates that the applicant has been an active and respected citizen of his community since his discharge.

Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness. That regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of habits and traits of character manifested by misconduct. An undesirable discharge was normally considered appropriate.

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. In the absence of evidence to the contrary, the Board must presume that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2. Accordingly, it appears that the type of discharge directed and the reasons therefor were appropriate even given the limited information contained in the available records.

3. The applicant’s contentions have been noted by the Board. However, they are not supported by the available evidence of record because they show that the applicant’s misconduct began before his first special court-martial conviction and continued while he was in confinement. Accordingly, his contentions are not sufficiently mitigating when compared to his otherwise undistinguished record of service.

4. While the Board commends him for his excellent post-service conduct and accomplishments, that in itself, coupled with the absence of evidence of an error or injustice in his case, is not sufficiently mitigating to warrant relief in his case.

5. The Board is also aware of the racial inequities that existed during the timeframe in question; however, the Board does not find any evidence in this case that such inequities contributed to his circumstances or misconduct.

6. 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 this requirement.

7. 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

__wtm___ __inw___ __cg____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074866
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/03
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1954/09/10
DISCHARGE AUTHORITY	AR615-368
DISCHARGE REASON	UNFIT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 583	144.5000/A51.00
2.
3.
4.
5.
6.