RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2005
      DOCKET NUMBER:  AR20040007163


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Karen A. Heinz                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant, as the wife of the deceased former service member (FSM),
requests, in effect, that clemency in the form of an upgrade to his
discharge be granted.

2.  The applicant states, in effect, that she was not sure if this is an
injustice or not but the FSM was married to someone else at the time and
his wife had a miscarriage.  The FSM requested leave and was denied so he
went absent without leave (AWOL).  When the FSM returned, he was discharged
with a dishonorable discharge.

3.  The applicant states if the dishonorable discharge could be upgraded it
would give her and their children peace of mind.

4.  The applicant provides a NA Form 13038 (United States of America
Certification of Military Service) with an ending period of 17 July 1953
and a State of Florida Office of Vital Statistics, Certificate of Death,
dated 15 April 2004.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military records are not available to the Board for review.
A fire destroyed approximately 18 million service members’ records at the
National Personnel Records Center in 1973.  It is believed that the FSM’s
records were lost or destroyed in that fire.  However, there were
sufficient documents remaining in a reconstructed record for the Board to
conduct a fair and impartial review of this case.  In addition, the record
of his trial by court-martial was available.

2.  A NA Form 13038 shows the FSM enlisted in the Regular Army from
1 November 1950 through 17 July 1953.

3.  On 4 November 1952, the FSM was convicted, contrary to his plea, by a
general court-martial of having deserted for the period 3 April 1951
through 30 July 1952 and being AWOL from 8 August 1952 through 18 August
1952.  His sentence consisted of a forfeiture of all pay and allowances,
confinement at hard labor for one year, and a dishonorable discharge.  The
convening authority suspended the dishonorable discharge until the
accused's release from confinement or until completion of the appellate
review, whichever was later.  The action did not provide for automatic
remission of the dishonorable discharge.



4.  Records show that during the course of the general court-martial the
FSM elected to make a sworn statement after being advised of his right to
introduce evidence in his behalf.  The FSM stated, in effect, that he was
in the Army hospital at Fort Benning, Georgia and went home on convalescent
leave, from which he returned to his company.  While home on convalescent
leave, he found his wife sick and in no condition to work.  The FSM further
stated he was upset and went AWOL back home to take care of her.

5.  The FSM stated when he returned home he had worked various jobs because
his wife had incurred medical bills from her sickness.  He was apprehended
in the state of Ohio and returned to military control.  The FSM stated that
the reason why he went AWOL the second time was to secure his wife a place
to live and he returned voluntarily to military control.

6.  On 30 January 1953, the Department of the Army, Office of The Judge
Advocate General, Board of Review affirmed the FSM's sentence and the
finding of guilty.

7.  On 17 July 1953, the FSM was separated from the Army with a
dishonorable discharge.

8.  In accordance with Title 10 of the United States Code, section 1552,
the authority under which this Board acts, the Army Board for Correction of
Military Records is not empowered to set aside a conviction.  Rather it is
only empowered to change the severity of the sentence imposed in the court-
martial process and then only 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 AND CONCLUSIONS:

1.  The FSM's trial by court-martial was warranted by the gravity of the
offenses for which he was charged and convicted.  In the absence of
evidence to the contrary, it is presumed that all requirements of law and
regulations were met and the rights of the FSM were fully protected
throughout the court-martial process, and the discharge appropriately
characterizes the misconduct for which the FSM was convicted.

2.  By law, ABCMR may not disturb the finality of a court-martial.  The
Board is only empowered to change a discharge if clemency is determined to
be appropriate to moderate the severity of the punishment imposed.

3.  Regrettably, given the seriousness of the offenses for which he was
convicted and the lack of supporting evidence provided by the applicant, it
is determined that the FSM's service was not sufficiently meritorious to
warrant granting the FSM clemency in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ MHM _  _ KAH  __  __ LF  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




                                  ____ Melvin H. Meyer _
                                            CHAIRPERSON













                                    INDEX


|CASE ID                 |AR20040007163                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |26 April 2005                           |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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