MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 June 2003
         DOCKET NUMBER: AR2003088676

         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
Mr. John P. Infante		Member
Ms. Eloise C. Prendergast		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 BCD (Bad Conduct Discharge) be upgraded to a General (Under Honorable Conditions) Discharge.

APPLICANT STATES: In effect, that while he was assigned to H Company, 325th Airborne Infantry Regiment at Fort Benning, Georgia, he was in Montgomery, Alabama, visiting some family and he got into trouble with civilian authorities. He was sentenced to four and a half years in the state prison in Alabama. This happened in approximately February 1952. In June, two Army personnel came to see him and got his side of the situation. He was discharged and his discharge was sent to his father in the state of Virginia. He never got a copy of his discharge certificate and therefore, he never tried to get it upgraded.

The applicant states that he hasn't had any trouble with any law enforcement agency since 1952, and would like for his discharge to be changed from a bad conduct discharge to a general (under honorable conditions) discharge so that he may receive medical benefits from the Department of Veterans Affairs (VA). He concludes by stating that it has been over 50 years since he made a young man's mistake and he is trying to change the past.

The applicant submitted a copy of his NA (National Archives and Records Administration) Form 13038, Certification of Military Service, dated 11 March 2003.

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 applicant enlisted in the Regular Army for 3 years on 9 February 1950. He was assigned to H Company, 325th Airborne Infantry Regiment, Fort Benning, Georgia.

On 7 July 1950, the applicant was tried and found guilty by a Summary Court-Martial of being absent without leave (AWOL) from 26 June to 6 July 1950. He was sentenced to forfeit $50.00 per month for one month. The sentence was adjudged and approved on 7 July 1950.

On 6 November 1950, the applicant was tried and found guilty by a Special Court-Martial of being AWOL from 5 October to on or about 19 October 1950. He was sentenced to be confined at hard labor for 45 days, to forfeit $30.00 per month for two months and to be reduced to the lowest enlisted grade. The sentence was adjudged on 6 November and approved on 16 November 1950.

On 5 May 1951, the applicant was tried and found guilty by a Special Court-Martial of being AWOL from 4 April to 6 April 1951, of being AWOL from 7 April to 9 April 1951, and of breaking restriction on 16 April 1951. He was sentenced to confinement at hard labor for one month, to forfeit $50.00 per month for two months and to be reduced to the lowest enlisted grade. The sentence was adjudged on 5 May 1951 and approved on 17 May 1951.

On 2 June 1951, the applicant was charged with going from his place of duty, as a member of the guard, without proper authority, with the intent to abandon the same. On 22 June 1951, he was arraigned and tried, and found guilty of the charge. He was sentenced to be discharged with a bad conduct discharge, to be confined at hard labor for six months and to forfeit $50.00 pay per month for 6 months. The sentence was adjudged on 22 June and approved on 6 July 1951.

On 27 August 1951, the officer exercising general court-martial jurisdiction ordered that the sentence be duly executed but that portion of the sentence adjudging a bad conduct discharge was to be suspended until the applicant was released from confinement or until completion of the appellate review, whichever was the later date. The officer exercising general court-martial jurisdiction also ordered that the applicant be confined to the Pilot Rehabilitation Training Center at Fort Gordon.

On 2 October 1951, the sentence was affirmed by a board of review in the Office of the Judge Advocate General. The applicant was to be notified that under the provisions of the Uniform Code of Military Justice, Article 67c, and the Manual for Court-Martial that he had 30-days to petition the Court of Military Appeals for a grant of review with respect to any matter of law.

On 23 October 1951, when an effort was made to notify him of the board of review's decision, it was determined that the applicant did not in fact go to the Pilot Rehabilitation Training Center, Fort Gordon. Investigation revealed that the applicant had departed AWOL. He was reported AWOL with an effective date of 14 January 1952. He was dropped from the rolls of the organization as a deserter on 12 February 1952.

Circumstances surrounding the applicant's return to military control are not known. When he returned to military control, the applicant was attached to Headquarters, ASU (Army Support Unit) Provisional Group, Fort Benning, for administrative processing.

On 3 June 1952, Headquarters, ASU Provisional Group published Special Orders 129 ordering the applicant to be discharged from the Army with an effective date of 10 June 1952.
The applicant was discharged on 10 June 1952 in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 615-364 and Special Court-Martial Order Number 57, Headquarters, The Infantry Center, dated 27 August 1951. The applicant’s record documents that the highest permanent rank and pay grade that he held on active duty was Private, pay grade E-1. The record contains no documented acts of valor, achievement, or service warranting special recognition.

On 11 March 2003, the applicant was provided a NA Form 13038, Certification of Military Service. This form was issued in the absence of a copy of the actual Report of Separation, or its equivalent. This document serves as verification of military service and can be used for any official purpose. This certificate shows the same information; the applicant enlisted in the Regular Army on 9 February 1950 and was discharged with an Bad Conduct Discharge on 10 June 1952 in the rank of Private.

Army Regulation 635-200, then in effect, provided for the discharge of enlisted personnel upon expiration of term of enlistment and set forth the general provisions governing the separation from active duty of enlisted and inducted persons, prior to expiration of their terms of service, in accordance with the provisions of the regulations listed in paragraph 13a.

Army Regulation 615-364, then in effect, provided the policy for discharge of enlisted personnel pursuant only to approved sentences of a general court-martial empowered to impose a dishonorable discharge.

Paragraph 3-7b, Army Regulation 635-200, 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.

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 gravity of the serious offense with which he was charged.

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. The Board sympathizes with the applicant and understands his desire to have his undesirable discharge upgraded to enable him to make application to the Veterans Administration to qualify for medical benefits; however, the Board does not grant relief solely for the purposes of an applicant qualifying for medical benefits.

5. 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 undesirable discharge to a general (under honorable conditions) discharge.

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___ __jpi___ __ecp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088676
SUFFIX
RECON
DATE BOARDED	20030612
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19520610
DISCHARGE AUTHORITY	AR 615-364
DISCHARGE REASON	A39.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.3900
3.
4.
5.
6.