MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2003087092

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann, Jr.		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: The applicant requests, in effect, reconsideration of his request for an upgrade of his Dishonorable Discharge (DD). There is evidence that the Board denied an earlier application for an upgrade of his discharge on 28 June 62; however, neither the Memorandum of Consideration nor the case file are available; therefore, the case is reviewed de novo.

APPLICANT STATES: The applicant remained silent and has allowed his counsel to state his case.

The applicant submitted a copy of his DD Form 214, Report of Separation from the Armed Forces of the United States, and a statement through counsel to support his request for an upgrade of his discharge.

COUNSEL CONTENDS: In effect, that he was an excellent combat soldier but was unable to function in the Regular Army due to very low impulse control and lack of self-discipline. Counsel describes the applicant as immature and illiterate. During his military time in Korea, he served with the 2nd Infantry Division and saw combat. He was awarded the Combat Infantryman Badge and other medals. After returning from the military, the applicant's life is described as debilitating. The problems he had prior to his service were exacerbated by the trauma of combat. Counsel states that the applicant should never have been inducted into the Army. He was inducted on a bogus enlistment and paid the consequences. The applicant served in the Army as good as he was capable and should be considered for an upgrade of his discharge.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.

The available records show that the applicant attended Iglo High School in Iglo, South Dakota, but only obtained a grammar school education. The applicant attained a score of 78 (Category IV) on the AGCT (Army General Classification Test) before enlisting in the Army.

The applicant enlisted in the Regular Army for 3 years on 20 September 1951 in Sioux Falls, South Dakota. The applicant received his basic combat training at Camp Stoneman, California. He was sent to Korea and served from 25 March 1952 through 5 December 1952 with Company L, 38th Infantry Regiment,

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2nd Infantry Division, in the positions of Rifleman, Messenger, and Squad Leader. He was awarded the Combat Infantryman Badge, the Korean Service Medal with two bronze service stars, and the United Nations Service Medal and attained the rank of Corporal.

The applicant returned to the United States on 23 December 1952 after a delay in Sasebo, Japan. He was assigned to Detachment #1, 5022 Area Service Unit, Camp Carson, Colorado. On 10 February 1953, the applicant departed AWOL (absent without leave) and remained in that status until 6 May 1953. On 10 May 1953, he again went AWOL and remained in that status until 25 September 1953. He was tried by a special court-martial for this absence and of failure to obey a written, direct order to proceed to his organization on 10 May 1953. He was sentenced to confinement at hard labor for 6 months and forfeiture of $55.00 per month for six months but the unexecuted portion of his sentence to confinement was suspended twenty-four hours after the accused left the United States for Korea. The sentence was adjudged on 23 October 1953.

The record remains silent about the applicant's service for the period from 23 October 1953 through 20 March 1954. Block 26 (Foreign and or Sea Service) shows that he was given credit for 1 year, 2 months, and 13 days foreign service, all of which may have been spent in Korea.

On his return from overseas, the applicant was assigned to Company E, 2nd Battalion, 11th Armored Cavalry Regiment, Fort Carson, Colorado. He absented himself from this unit on or about 20 March 1954, and remained absent until on or about 22 September 1954.

During his absence, the applicant was arrested on 4 September 1954 and was convicted of contributing to the delinquency of a minor in Custer County, South Dakota, and was given three months confinement. While in confinement, he escaped from custody on 11 September and surrendered to the County Sheriff on 13 September 1954. He was given an additional 30 days sentence for the escape offense. The confinement was not served. It was remitted when he was returned to military authorities on 22 September 1954.

On the applicant's return to military control, he was arraigned and tried by a general court-martial. He was convicted of absenting himself on or about 20 March 1954, from his unit, Company E, 2nd Battalion, 11th Armored Cavalry Regiment, Fort Carson, Colorado, and remaining absent until on or about 22 September 1954.

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The applicant testified under oath, and offered, in matters of extenuation or mitigation, that he had gone AWOL to help his family, which consisted of his wife and his mother, who was a cripple. His mother could not work and therefore, he had to support her as well as his wife.

He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for six months. The sentence was adjudged on 12 November 1954 and approved on 24 November 1954. Results of the trial and the sentence were announced in General Court-Martial Order Number 436, published by Headquarters, Fifth United States Army, dated 24 November 1954.

A Board of Review in the Office of The Judge Advocate General affirmed the sentence on 9 December 1954.

Clemency and restoration to duty were denied the applicant on 24 March 1955 as evidenced in a letter from the Office of The Provost Marshal General.

The applicant was discharged on 17 January 1955 in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 615-364 and General Court-Martial Order 436, Headquarters, Fifth US Army dated 24 November 1954. On his discharge date, the applicant had 1 year, 8 months and 24 days active Federal service with 494 days lost due to AWOL and confinement and 89 days lost subsequent to his normal expiration of term of service. The applicant’s record shows that the highest rank and pay grade that he held on active duty was Corporal, pay grade E-4.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Paragraph 3-7b,of the same regulation, defines a general discharge as a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

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Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction. The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction. The Board may elect to change the punishment and/or the characterization of service if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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 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.

2. Trial by court-martial was warranted by the serious offense with which he was charged: being absent without leave.

3. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

4. After a thorough review of the applicant’s record, the Board found no cause for clemency and an insufficient basis upon which to base an upgrade of his dishonorable discharge to either General (under honorable) or a fully honorable discharge.

5. The evidence of record does not support counsel's contention that the applicant was illiterate. The applicant scored a 78 in the Army General Classification Test and qualified for enlistment in the Army and served successfully as a messenger and as a squad leader.

6. The evidence of record also does not support counsel's contention that the applicant lacked maturity. He was promoted to the rank of Corporal in a combat environment and served as a squad leader, which indicates that he was considered by those superior to him to be responsible enough to entrust the safety, security, and indeed, the lives of others to him. In addition to this, the applicant testified, in matters of extenuation and mitigation, that he had gone AWOL to help his family. His choice of options was poor, but the motivation was both responsible and mature.

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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

__rvo___ __kan___ __phm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087092
SUFFIX
RECON
DATE BOARDED	20030703
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	19550117
DISCHARGE AUTHORITY	AR 615-364
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	105.0000
3.	105.0100
4.
5.
6.