MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 February 2003
         DOCKET NUMBER: AR2002075849

         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
Mrs. Carolyn G. Wade.		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Ms. Gail J. Wire		Member
Mr. Robert J. Osborn, II		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 dishonorable discharge (DD) be upgraded to honorable. In effect, this is a request for reconsideration of an earlier request which this Board denied on 25 April 1956. The Memorandum of Consideration is not available and the case is reviewed de novo.

APPLICANT STATES: That he had served honorably for 8 years prior to making the mistake of not returning from his approved leave and being classified as absent without leave (AWOL) for 30 days. He states that he has been a good citizen for 47 years without ever being arrested. He states that he has cancer and would like to be buried in a national cemetery.

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 applicant's Record of Trial and documents submitted by the applicant.

On 13 September 1946, the applicant enlisted in the Regular Army and served until he was honorably discharged on 28 June 1950 for the purpose of immediate reenlistment. He was credited with 3 years, 9 months, and 15 days of creditable military service.

On 29 June 1950, at Fort Hood, Texas, he reenlisted in the Regular Army for a period of 6 years and was later transferred to Germany.

In August 1953, the applicant accepted two nonjudicial punishments under the provision of Article 15, Uniform Code of Military Justice and was reduced from corporal to private. The record does not contain further details of the applicant's indiscipline.

The applicant was convicted twice by summary courts-martial of being AWOL from 1-6 October 1953 and 25-26 March 1954. For each offense, his sentence consisted of forfeiture of $30.00 pay per month for 1 month.

The applicant was also convicted by a special court-martial of being AWOL from 29 July to 25 August 1954. He was sentenced to forfeiture of $50.00 pay per month for 2 months.

On 25 September 1954, at Fort Lewis, Washington, the applicant departed his unit AWOL and remained absent until 3 December 1954 when he surrendered to military authorities and was placed in pre-trial confinement at the post guardhouse, Fort Sam Houston, Texas.

On 20 December 1954, the applicant was charged with this period of AWOL. He indicated that he went AWOL because his mother was having marital difficulties.

On 18 January 1955, at Fort Sam Houston, the applicant was convicted by a general court-martial of being AWOL from 25 September 1954 to 3 December 1954. He was sentenced to 6 months' confinement at hard labor, total forfeiture of pay and allowances, and a dishonorable discharge (DD) (suspended until released from confinement or completion of appellate review, whichever was later). On 20 January 1955, the sentence was approved. He was to be confined to the Branch United States Disciplinary Barracks (USDB), Fort Crowder, Missouri.

On 4 February 1955, the Board of Review affirmed the applicant’s sentence.

On 13 April 1955, the applicant’s request for restoration to duty and clemency was disapproved.

On 17 June 1955, the applicant was dishonorably discharged.

On 25 April 1956, the ABCMR determined that the applicant had submitted insufficient evidence to indicate probable material error or injustice and denied the applicant’s request to upgrade his discharge.

On 29 January 1959, the applicant again requested correction of his discharge to reenter the service. On 3 February 1959, he was again told that the appellate process had been completed, that his conviction and sentence were final, and that there was no provision of law whereby his case could be reviewed in the Office of the Judge Advocate General. However, he could appeal to the ABCMR again if he had substantial new evidence. He was also told that he could contact the Office of the Adjutant General of Army to request a waiver of his DD.

On 8 August 1961, the applicant again requested through the Office of the Adjutant General of the Army a waiver of his DD so that he might reenlist in the Army. On 24 August 1961, the Office of the Adjutant General of the Army responded to the applicant’s request by informing him of the requirements for obtaining a waiver to reenlist. There is no evidence of record to show that the applicant acted on this information to submit a request for a waiver of his DD to the nearest recruiting command.

On 12 September 1961, the applicant submitted DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable. He indicated that he wanted to return to the Army and complete his term of service. There is no further information in the record; however, the ADRB would have rejected the request as not being within the purview of that board.

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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 Board noted the applicant’s contentions; however, the evidence of record does not support them, and the applicant has not provided any supporting documentation. The evidence of record indicates that the applicant did not fail to return from leave on 25 September 1954, but went AWOL from his unit and remained absent until 3 December 1954. The applicant also had three other court-martial convictions for being AWOL.

2. The Board congratulates the applicant on his achievements since departing the Army. However, the Board does not grant relief based solely on post service conduct.

3. The Board considered the applicant's overall quality of service, the events that precipitated the discharge, and available evidence related to post-service activities and accomplishments. While the Board sympathizes with the applicant’s present medical situation, the Board does not upgrade discharges for the purpose of obtaining Veterans Administration (VA) benefits, nor does the Board determine eligibly for such benefits, to include burial in a national cemetery.

4. The evidence of record clearly shows that the applicant was adjudged guilty by a general court-martial and that the convening authority approved the sentence. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. After a thorough review of the applicant’s record and any issues submitted, the Board found no basis for clemency.

5. 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.

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

__rvo___ __gjw___ __rjo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075849
SUFFIX
RECON
DATE BOARDED	20030213
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	19550617
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.9405
2.	105.0100
3.
4.
5.
6.