IN THE CASE OF: BOARD DATE: 18 November 2008 DOCKET NUMBER: AR20080013995 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 (with a formal Power of Attorney) requests, in effect, upgrade of the former service member’s (FSM) undesirable discharge to an honorable discharge. 2. The applicant states, in effect, that the FSM received a life-threatening, war-related injury during the Korean War when an explosive device was detonated in his unit. The applicant also states that the FSM could not report to active duty due to the extensive nature of the injuries he sustained. The applicant further states that the FSM was in Walter Reed Army Hospital (WRAH), Washington, District of Columbia (DC); he was told he would never walk again; and he has scars on his ankle to prove it. The applicant adds the FSM was unaware of the error in his records until he applied for benefits from the Department of Veterans Affairs (VA). 3. The applicant provides copies of 2 DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), with effective dates of 23 November 1958 and 13 June 1960; James Graham Brown Cancer Center, Health Care, letter, notarized on 18 July 2008; and a Limited Power of Attorney, dated 25 June 2008, in support of her application. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM’s military service records contain a DD Form 214, with an effective date of 23 November 1958. This document shows the applicant was inducted into the Army of the United States on 19 March 1958 and awarded military occupational specialty (MOS) 941.10 (Cook). He was honorably discharged on 23 November 1958 for the purpose of his immediate enlistment in the Regular Army (RA). At the time, he was credited with completing 8 months and 5 days of net service this period and 3 months and 12 days of foreign service. 3. The FSM enlisted in the RA for a period of 4 years on 24 November 1958. 4. The FSM’s military service records contain a DA Form 24 (Service Record). Section 5 (Service Outside Continental United States) shows the FSM served in Korea from 11 August 1958 to 21 June 1959. Section 7 (Combat Record) and Section 8 (Wounds Received Through Enemy Action) are absent any entries. Section 4 (Chronological Record of Military Service), in pertinent part, shows the FSM was assigned to Company D, 13th Engineer Battalion (Korea) from 24 February 1959 to 9 June 1959. This item also shows he was assigned to the 121st Evacuation Hospital (Ascom City, Korea) on 12 June 1959 and assigned to the Medical Holding Detachment, WRAH on 26 June 1959. On 14 August 1959, the FSM was assigned to Company B, 19th Engineer Battalion (Combat), Fort George G. Meade, Maryland. Section 6 (Time Lost Under Section 6(a), APP 2b, Manual for Courts-Martial (1951) and Subsequent to Normal Date ETS [Expiration Term of Service]) shows the FSM was absent without leave (AWOL) for 164 days from 12 October 1959 to 23 March 1960 and in confinement for 57 days from 24 March 1960 to 12 June 1960. 5. The FSM’s military service records contain a WRAMC Form 184 (Physical Profile Notification), dated 27 July 1959, that shows he was issued a temporary physical profile for a period of 2 months due to posterolateral dislocation of his right ankle with rupture of deltoid ligament. 6. The FSM’s military service records contain a DD Form 481 (Clinical Record Cover Sheet), dated 7 August 1959, and Standard Form (SF) Form 502 (Clinical Record - Narrative Summary), dated 13 August 1959. This documentation, in pertinent part, shows the diagnoses “fracture, simple, n.e.c., right fibula (malleolus), no artery or nerve involvement” and “dislocation, joint, incomplete, tibial talar, right.” This documentation also shows that the FSM was admitted to WRAH for continuation of treatment of a posterolateral fracture dislocation of the right ankle that the FSM accidentally incurred at about 1845 hours, 12 May 1959, when he was playing baseball in the company area in Korea and he twisted his ankle. 7. The FSM’s military service records contain a copy of Headquarters, Headquarters Group, U.S. Army Armor Center (USAARMC), Fort Knox, Kentucky, Special Court-Martial Order Number 193, dated 9 May 1960, that shows, on or about 12 October 1959, without proper authority, the FSM absented himself from his organization, to wit: Company B, 19th Engineer Battalion (Combat), located at Fort George G. Meade, and did remain so absent until on or about 24 March 1960. The FSM pled guilty to the Specification and the Charge. He was found guilty of the Specification and Charge and sentenced to be confined at hard labor for a period of 6 months, to forfeit $55.00 per month for 6 months, and to be reduced to the grade of Recruit (E-1). The sentence was adjudged on 3 May 1960, approved on 9 May 1960, and ordered duly executed. 8. The FSM’s records contain a copy of Headquarters, Headquarters Group, USAARMC, Fort Knox, Special Court-Martial Order Number 238, dated 6 June 1960, that shows the unexecuted portion of the sentence to confinement at hard labor only, in the FSM’s case, was remitted effective the date of his administrative discharge. 9. The FSM’s military service records contain a USAARMC Form 291 (Statement of Waiver - Administrative Discharge Action), dated 26 April 1960. This document shows that the FSM acknowledged with his signature that he had been counseled and advised by his commanding officer of the basis for the recommended action; namely, administrative elimination from the Army under the provisions of Army Regulation 635-208 for unfitness. This document also shows that the FSM declined the opportunity of requesting counsel, waived his rights to have his case heard by a board of officers, did not desire to submit a statement in his own behalf, and understood the type of discharge that the separation authority may issue could be under other than honorable conditions. The FSM indicated that he personally indicated his desires on the document and voluntarily signed the statement of his own free will. 10. On 31 May 1960, the FSM’s company commander recommended the FSM’s separation from the military service under the provisions of Army Regulation 635-208. The reasons for the separation action cited by the commander were the FSM’s absence from the U.S. Army on 12 October 1959 until he was apprehended by civil authorities 164 days later on 24 March 1960; conviction by Special Court-Martial; 6 months confinement; a total of 204 days lost under Title 10, U.S. Code, section 972; the FSM’s suggestion he had never felt any inclination to voluntarily return to military control, and his poisonous attitude toward the Army. The company commander recommended the FSM be discharged under the provisions of Army Regulation 635-208 and furnished an Undesirable Discharge Certificate. 11. The FSM’s separation action contains a Certificate of Psychiatric Evaluation, dated 18 May 1960. This document shows the examining psychiatrist evaluated the FSM and as a result of his examination, in his opinion, the FSM’s diagnosis was antisocial personality not amenable to medical or psychiatric treatment in the military setting; the FSM was mentally able to distinguish right from wrong and to adhere to the right; the FSM had the mental capacity to understand and participate in board proceedings and testify in his own defense; and there was no physical or mental defect warranting medical separation of the FSM. The examining psychiatrist concluded the FSM should be separated under the provisions of Army Regulation 635-208 because of unfitness. 12. On 31 May 1960, the lieutenant colonel serving as Commander, Headquarters, Headquarters Group, USAARMC, Fort Knox, Kentucky, recommended approval of the FSM’s discharge under the provisions of Army Regulation 635-208 because of unfitness and that the FSM be given an undesirable discharge. 13. On 6 June 1960, the major general serving as Commander, USAARMC, Fort Knox and as the designated separation authority, approved the separation action under the provisions of chapter 10, Army Regulation 635-208, because of unfitness and directed that the FSM receive an undesirable discharge. 14. The FSM’s DD Form 214 shows he was discharged from the U.S. Army with an undesirable discharge with service characterized as under other than honorable conditions, in accordance with the provisions of Army Regulation 635-208, Separation Program Number (SPN) 28B. Item 32 (Remarks) of the DD Form 214 shows, in pertinent part, that the FSM had 221 days lost under Title 10, U.S. Code, section 972, from 12 October 1959 through 12 June 1960. The DD Form 214 also shows that the FSM was discharged on 13 June 1960, credited with completing 10 months and 18 days of net active service during the period under review, and issued a DD Form 258A (Undesirable Discharge Certificate). 15. The FSM’s records are absent any evidence that he served in the U.S. Army during the period of the Korean War (i.e., from 27 June 1950 to 27 July 1953) or that the FSM received a life-threatening, war-related injury during the Korean War from an explosive device. 16. There is no evidence the FSM applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 17. In support of the FSM's application, the applicant provides 2 DD Forms 214, with effective dates of 23 November 1958 and 13 June 1960. These documents were previously introduced and considered in this Record of Proceedings. The applicant also provides a notarized copy of a letter written by Doctor Goetz H. K_______, Assistant Professor of Medicine, Division of Medical Oncology/ Hematology, James Graham Brown Cancer Center, Health Care, who states the FSM was in the hospital (at that time i.e., around July 2008) undergoing active treatment with mental status changes, which are fluctuating; the FSM is undergoing active treatment; has substantial impairment of his ability to care properly for himself; and the duration of his diminished capacity could not be stated. The Spencer County, Limited Power of Attorney, dated 25 June 2008, in pertinent part, appoints the applicant as the FSM’s attorney-in-fact. 18. Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character), in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel having undesirable habits and traits of character. Paragraph 6 (Applicability) of this document states that an individual is subject to separation under the provisions of this regulation when one or more of the conditions exist and subparagraph 1 (Unfitness) includes, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities. This Army regulation also provides that Soldiers may be issued an Honorable or General Discharge Certificate by the separation authority; however, a discharge for unfitness was normally furnished an Undesirable Discharge Certificate. 19. Army Regulation 635-5-1 (Separation Program Numbers), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214. It identifies the SPN of “28B” as the appropriate code to assign enlisted Soldiers discharged for unfitness who are involved in frequent incidents of a discreditable nature with civil or military authorities. 20. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), governs the policies and procedures for the separation of enlisted personnel. Paragraph 3-7a, 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. 21. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is 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 the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, that the character of service of the FSM’s discharge should be upgraded because the FSM received a life-threatening, war-related injury during the Korean War and, due to the extensive nature of his injury, he was prevented from reporting for duty. 2. There is no evidence of record that shows the FSM served in the U.S. Army during the Korean War or that he received a life-threatening, war-related injury during the Korean War from an explosive device. In addition, the applicant provides insufficient evidence to support this claim. Therefore, it is concluded that the FSM did not serve in the U.S. Army during the Korean War nor did he receive a war-related injury during the Korean War. 3. The evidence of record shows the FSM was accidentally injured on 12 May 1959 when he was playing baseball in the company area in Korea and he twisted his ankle. The evidence of record also shows that the FSM received medical treatment at the 121st Evacuation Hospital (Korea) and subsequently at WRAH. The evidence of record further shows the FSM was issued a temporary physical profile; released from WRAH; assigned to Company B, 19th Engineer Battalion (Combat), Fort George G. Meade; and that he reported for duty on 14 August 1959. Thus, the evidence of record refutes the applicant’s claim that the FSM’s injury prevented him from reporting for duty. 4. The evidence of record shows the FSM went AWOL from his organization on 12 October 1959 and remained in an AWOL status until he was apprehended by civil authorities on 24 March 1960. The evidence of record also shows that the FSM was in confinement from 24 March 1960 to 12 June 1960. The evidence of record further shows the FSM was credited with completing 10 months and 18 days of net active service and had 221 days lost (i.e., more than 7 months) during the period of service under review. Thus, the FSM’s record of service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge. In addition, the evidence of record shows the applicant's overall quality of service during the period of service under review was not satisfactory. Therefore, the applicant is not entitled to a general discharge under honorable conditions. 5. The evidence of records shows that the FSM’s discharge under the provisions of Army Regulation 635-208 because of unfitness was administratively correct and in compliance with applicable regulations. In addition, the evidence of record shows the FSM was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process. 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 this requirement. Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request on behalf of the FSM. 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________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) AR20080013995 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080013995 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1