IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100020330 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his previous application for upgrade of his undesirable discharge to a general under honorable conditions discharge.

2.  The applicant states he has noted the following issues with the consideration of his initial application:

	a.  He did not enter an unauthorized absence status at any time during his first enlistment.  He further states a summary court-martial in April 1951 and a special court-martial in June 1952 did not take place.  He requests proof to the contrary.

	b.  He finds it difficult to believe that if he had been reduced to pay grade E-1 as a result of a court-martial in July 1952, he could have been promoted to pay grade E-4 12 months later.  He doesn't believe he would have been permitted to reenlist with that type of military record.

	c.  He questions how a court-martial could be convened on 30 June 1954 when his authorized absence did not terminate until 9 July 1954.  This would imply that he was not present at his own disciplinary hearing.

3.  The applicant provides no new documents in support of his request for reconsideration.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090016650 on 1 April 2010.

2.  The applicant submitted a new argument which was not previously considered by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  He enlisted in the Regular Army on 20 February 1951 for a period of 3 years.

4.  A DA Form 115 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 9 April to 16 April 1951.  Page 4 of the form is a Record of Trial by Summary Court-Martial showing he pleaded guilty.  His sentence to forfeiture of $50.00 of his pay and to perform hard labor for 20 days was adjudged and ordered executed on 23 April 1951.

5.  Special Court-Martial Order Number 51, issued by Headquarters, 7th Armored Division Artillery, dated 21 July 1952, shows he was found guilty of being AWOL from on or about 23 June 1952 to on or about 14 July 1952.  His sentence to reduction to private/E-1 was approved effective the date of the order.

6.  Section 1 (Appointments, Promotions, or Reductions) of his DA Form 24 (Service Record) shows he was promoted to:

* private/E-2 (permanent) effective 22 July 1952 
* private first class/E-3 (temporary) effective 22 January 1953
* corporal/E-4 (temporary) effective 28 July 1953

7.  He was honorably discharged on 28 December 1953 to reenlist.  On 29 December 1953, he reenlisted for a period of 4 years.

8.  Special Court-Martial Order Number 142, issued by Headquarters, The Artillery Center, Fort Sill, OK, on 16 August 1954, shows:

	a.  A special court-martial was convened pursuant to Special Orders Number 126, paragraph 33, issued by the same headquarters on 30 June 1954.

	b.  He was charged with three specifications of being AWOL from:

* on or about 22 April to 26 April 1954
* on or about 27 April to 21 May 1954
* on or about 24 May to 9 July 1954

	c.  He pleaded not guilty, was found guilty, and was duly sentenced to confinement at hard labor and forfeiture of pay.

	d.  His sentence was adjudged on 26 July 1954.

9.  Special Court-Martial Order Number 13, issued by Headquarters, Special Troops, Sixth Army, Presidio of San Francisco, CA, on 14 December 1954, shows he pleaded guilty to one specification of being AWOL from on or about 6 September to 10 December 1954.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $60.00 pay per month for 6 months.

10.  The facts and circumstances surrounding the applicant's discharge are not present in his record.  However, his record does contain a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) which shows he was discharged on 23 September 1955 in pay grade E-1 under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge - Unfitness) with an undesirable discharge.  He was credited with 3 years, 3 months, and 16 days of net active service with 409 days of lost time due to AWOL and confinement.

11.  Army Regulation 615-368, then in effect, provided the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals determined to possess undesirable habits and traits were discharged under this regulation.  An undesirable discharge was normally issued.

12.  Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, provided for the discharge of enlisted personnel upon expiration of term of enlistment and set forth the general provisions governing the release from active duty of enlisted and inducted persons prior to expiration of their term of service.  Section III (Factors Governing Issuance of Honorable and General Discharge Certificates) stated that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of his undesirable discharge to a general under honorable conditions discharge.

2.  The new arguments he provides were carefully considered but were found to have no bearing on his discharge.  In fact, the evidence of record does not support his arguments.

3.  He contends he did not enter an unauthorized absence status at any time during his first enlistment.  A DA Form 115 and a special court-martial order show he was found guilty of being AWOL twice during his first enlistment.

4.  He finds it difficult to believe he would have been allowed to reenlist with his record.  Regardless of how difficult he may find it to believe, the record shows he was, in fact, promoted to corporal/E-4 approximately 1 year after being reduced to private/E-1 and he was allowed to reenlist.  In addition, during a period of war when manpower is needed, his being allowed to reenlist is not hard to believe.

5.  He questions how a court-martial could be convened on 30 June 1954 when his authorized absence did not terminate until 9 July 1954.  This is a minor point of confusion in the Record of Proceedings prepared for the original consideration of this case.  The 30 June 1954 order was most likely the standing order (listing panel members) that different cases were referred to.  The actual proceedings took place on or about 26 July 1954, the date his sentence was adjudged.  He had returned to military control from an AWOL status on 9 July 1954, well before this date.

6.  The record does not show and the applicant has not provided evidence showing error or injustice.  Therefore, he is not entitled to upgrade of his undesirable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ____X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090016650, dated 1 April 2010.



      _______ _ X  _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100020330



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ABCMR Record of Proceedings (cont)                                         AR20100020330



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