MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:



                  BOARD DATE: 30 OCTOBER 2003
                  DOCKET NUMBER: AR2003087643

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Mr. Ernest W. Lutz, Jr.		Member
Mr. Larry C. Bergquist		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: In effect, that his dishonorable discharge be upgraded to honorable.

APPLICANT STATES: That the verdict of the General Court-Martial was erroneous. He has requested a review and believes that it will be favorable.

He provides a letter explaining the events leading up to his conviction. He requests that his awards and decorations be taken into account; and that the fact that he moved up through the ranks to become a first sergeant and then received a battlefield commission also be considered. He has lived an upright, honest, and hard working life since his discharge. He has supported his wife and raised six children.

In his 12 March 2003 letter he states that he [and others] returned to the United States by ship after the war was over in Europe, docking at a port in Virginia. They lived in a temporary camp, with no buildings, only tents with no facilities and inadequate rations. They were told that they would be there until their separation papers caught up with them. After several days, their superior officer told them they could continue to stay there or could go home, even recording their home addresses, informing them that their separation papers would be mailed to them. He welcomed the idea of going home, never questioning his commanding officer. After constant combat with no break or relief, from the invasion of Europe to the day Germany surrendered, not counting the times that he was in field hospitals recovering from wounds, he was ready to go home. He never shirked his duty as a soldier. He was involved in eleven major battles and received three Purple Hearts, two Silver Star Medals, and four Bronze Star Medals. He was a prisoner of war and survived and returned to combat. He requests that his discharge be upgraded so that he can receive the benefits he justifiably deserves.

He submits a 12 June 2002 assessment provided by a counselor of the Department of Veterans Affairs (VA) in Waco, Texas. That individual supported the applicant's claim for service-connected disability due to post traumatic stress disorder (PTSD), stating that the applicant reported being involved in heavy combat during World War II, and that the applicant reported various symptoms, e.g., anxiety, stress, depression, difficulty sleeping, etc. He stated that the applicant indicated that the symptoms caused him substantial psychological distress since World War II. The counselor provided information concerning the applicant's wartime service and post wartime service as reported by the applicant; and his current symptoms, stating that his PTSD was chronic and moderate to severe.

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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 record of his trial by court-martial and from reconstructed personnel records. The applicant's separation document is not available.

The applicant was promoted to the temporary grade of corporal on 12 October 1942 at Camp Atterbury, Indiana, to the temporary grade of sergeant on 5 November 1942 at Camp Atterbury, and to the temporary grade of staff sergeant on 9 August 1943 by the Commanding Officer of the 323d Field Artillery Battalion at Nashville, Tennessee.

The "FINDINGS" page of a General Court-Martial shows that the applicant was found guilty of desertion. That page indicates that the applicant had enlisted at Jackson, Mississippi on 10 July 1941 for three years and was extended for the duration plus six months. It indicated that he had been confined at the New Orleans Personnel Center Guardhouse, Camp Leroy Johnson, Louisiana, on 15 November 1948.

The "SENTENCE" page, dated 4 January 1949, shows that the applicant was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for two years.

On 11 January 1949 the New Orleans Port of Embarkation Judge Advocate reviewed the court-martial proceedings. That review indicated that the applicant had deserted Camp Atterbury on 1 January 1947 and was apprehended at Deberry, Texas on 2 November 1948. The applicant pled guilty to AWOL.

The review of the evidence presented by the defense indicated that the applicant went overseas and landed on Omaha Beach on 12 June 1944, went on to Germany, where in November 1944 he was confined and charged with the 93d Article of War, temporarily released from confinement and armed at Bastogne, later placed back in confinement, tried by General Court-Martial in January 1945 and sentenced to be dishonorably discharged, and to be confined at hard labor for ten years. After 17 months in confinement he was honorably restored to duty. In December 1946 a medical officer recommended that he be discharged. He went AWOL to take his wife to a clinic in Louisiana. While AWOL, he worked until apprehended by the FBI (Federal Bureau of Investigation) on 3 November 1948. At no time during his AWOL was he in trouble. The defense indicated that it offered letters as to the applicant's character.

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The Judge Advocate stated that the record was legally sufficient to support the findings and the sentence.

In making his recommendation, the Judge Advocate provided a review of the applicant's military record, stating that the applicant was tried and convicted by summary court on 20 August 1942 for being disorderly in uniform, tried and convicted by summary court on 6 January 1944 for AWOL, tried and convicted by special court on 17 March 1944 for AWOL, tried and convicted by general court on 20 January 1945 for willfully, feloniously, and unlawfully kill by shooting on 10 November 1944. The applicant was released from confinement and returned to duty on 27 April 1946, went AWOL on 20 May 1946 from Camp Atterbury and returned on 6 November 1946. He was tried and convicted by court-martial on 20 November 1946, and sentenced to 6 months confinement. He escaped from confinement on 1 January 1947 and returned to military control in November of 1948.

The Judge Advocate recommended that the sentence be approved and ordered executed. It was so directed on 11 January 1949.

General Courts-Martial Orders Number 4, dated 4 February 1949, shows that the applicant was arraigned, tried, and pled guilty to AWOL, that he was convicted of desertion and sentenced as indicated above, and that the sentence was approved and ordered executed.

A 20 May 1949 form (Data for First Clemency Consideration) completed at the United States Disciplinary Barracks, Fort Leavenworth, Kansas, indicated that no clemency was recommended at that time.

On 10 June 1949 the applicant's sentence to confinement in excess of one and one-half years was remitted. On that same date his request for release on parole was disapproved.

In a 24 December 1983 letter, apparently sent to a VA Regional Office in Waco, Texas, the applicant recounted his military experiences, to include his battle participation in France and Germany, and his return to the United States at Fort Eustis, Virginia, after the war was over, stating that it was at Fort Eustis where he was separated from the service. He stated that his separation papers were destroyed in a fire. He stated that he would like to have some sort of veteran's pension to help him through whatever might be left out of his life.

On 31 July 2002 the National Personnel Records Center prepared a Certification of Military Service showing that the applicant was a member of the Regular Army from 10 July 1941 until 3 January 1946 and that he was dishonorably discharged.

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The current Army Regulation concerning discharge of enlisted soldiers from the Army states that a soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Article 50(e), Articles of War, in effect in 1949, was substantially similar to the current directive.

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's separation document (DD Form 214) is not available to the Board; nonetheless, the applicant himself states that he was dishonorably discharged from the Army. The certification of military service prepared by the National Personnel Records Center shows that he was dishonorably discharged in 1946; however, that certification may well have been based on a prior general court-martial conviction and sentence to be dishonorably discharged. Albeit, regularity is presumed, that is, he was dishonorably discharged only after completion of appellate review and affirmation of the sentence, and the sentence ordered duly executed. The applicant does not dispute the fact that he was dishonorably discharged.

2. The applicant pled guilty to the charge of AWOL, but was found guilty of desertion. The findings and the sentence were reviewed by the New Orleans Port of Embarkation Judge Advocate and were determined to be legally sufficient. There is no evidence, and the applicant has not provided any, to show that the findings and the sentence by the 1949 General Court-Martial were erroneous, unfair, or unjust.

3. The Board has taken note of the applicant's 12 March 2003 letter to the Board, and also of his 24 December 1943 letter to a VA Regional Office in Waco. The Board also notes the 12 June 2002 assessment provided by the Department of Veterans Affairs Regional Office in Waco. Except for the documents showing his promotions in 1942 and 1943, and the information contained in his court-martial documents, there is no evidence of his service during World War II. The applicant's statements concerning, "awards and decorations, wounds, battles, prisoner of war" are unsupported.

4. The Board has also taken cognizance of the applicant's contentions of good post service conduct. This, however, is insufficient reason to grant the applicant's request.

5. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

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 that 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

__CLG __ __EWL__ __LCB __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087643
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031030
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.