APPLICANT REQUESTS:  That his military records be corrected by changing his discharge from general to honorable, paying him the pay and allowances he would have received had he completed his period of service, change his reentry (RE) code from RE-3B to RE-1, expunge all evidence of the general court-martial he received and return all moneys lost as a result of it.  In the alternative, he asks that his discharge be changed to a medical discharge based on his suffering leg and back injuries and Post-traumatic Stress Disorder (PTSD).

APPLICANT STATES:  That this application is intended to amend his prior unsuccessful petitions to this Board and is predicated on the discovery of new information including a polygraph test conducted in 1993 which proves he did not commit the crime for which he was court-martialed.  His purpose is to remedy the errors and injustices he suffered with regard to his 1956 administrative discharge and court-martial and to seek a discharge based on his service related medical conditions and compensation for the monetary loss he suffered by reason of the early termination of his service.

EVIDENCE OF RECORD:  The applicant’s military records show:

He was inducted on 13 November 1952 and served 1 year, 3 months and 13 days overseas (Korea) as an infantryman and medical corpsman.  He was honorably released to the USAR on 24 August 1954 as a private.  The record also shows that he was awarded the Bronze Star Medal, the Good Conduct Medal, the National Defense Service Medal, the Korean Service Medal, the United Nations Service Medal, the Combat Infantryman Badge and the Sharpshooter Badge with rifle bar.

The applicant reenlisted in the Regular Army for 4 years on 17 January 1955.  Between the period April 1955 and August 1955 he accepted nonjudicial punishment under the provisions of Article 15, UCMJ on four occasions, for not having post tags on his automobile and wearing a mixed uniform; failing to make reveille; being drunk and disorderly and misconduct. 

On 10 November 1955 he plead guilty before a general court-martial to larceny and being disorderly in quarters.  He was found guilty and sentenced to confinement at hard labor for 6 months and forfeiture of $65.00 per month for a like period.  The maximum sentence for the offenses charged was a dishonorable discharge, confinement at hard labor for 1 year and 1 month and total forfeiture of pay.  The sentence was suspended on 9 February 1956 and subsequently remitted.

On 14 April 1956 the applicant’s commander requested that he be discharged from the service for fraudulent entry under the provisions of Army Regulation 635-206.  Prior to his reenlistment, he had failed to indicate that he had been convicted of a felony by a civil court and that a court had sentenced him to probation for 1 year and payment of restitution for larceny.

Thereafter, the appropriate authority approved his request for discharge and directed the issuance of an undesirable discharge.  Accordingly, the applicant was discharged on 22 May 1956 and assigned RE code 3B.

The record contains no evidence of the applicant’s back injury for which he was subsequently (from 22 December 1967) rated as 10 percent disabled by the VA.  Additionally, the VA did not rate as disabling the residual of a shell fragment wound to the left leg.  It is noted that the admission slip pertaining to the leg wound shows that the wound occurred in “May 1953”, but the admission slip itself was not prepared until 17 February 1954.

The Army Discharge Review Board (ADRB) denied his request to upgrade his discharge on 29 October 1959.  However, following another review on 25 November 1969 the ADRB decided to upgrade his undesirable discharge to a general discharge under honorable conditions.

This Board denied his request to further upgrade his discharge on 3 April 1970.

Army Regulation 635-206, Personnel Separations, then in effect, provides in pertinent part that an individual who conceals a conviction by a civil court for a criminal offense for which he was sentenced to imprisonment, probation or parole or given a suspended sentence for a term of 1 year or less, normally will be retained in the service.
An individual who is to be discharged under the provisions of this section of the regulation will be given an undesirable discharge.

Army Regulation 601-210, Regular Army and Army Reserve Enlistment Program, provides generally that an RE-3B code pertains to persons who have lost time during their last period of service.  They are ineligible for reenlistment unless a waiver is granted.

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 was properly processed and separated in accordance with the regulation pertaining to fraudulent entry separations then in effect.  The character of his discharge reflected the quality of his service and was in accordance with regulatory guidance.

2.  Since there is no basis to grant that portion of his request pertaining to his administrative separation, there is likewise no basis for changing his RE code.  RE code 3B correctly reflects the disqualification which established the basis for that RE code.

3.  Since the discharge proceedings were conducted in a fair and equitable manner, there is no basis to restore credit for the years he would have served had his service not been terminated for fraudulent entry.  Nor is there any basis for authorizing pay and allowances that may have accrued for those years of missed service.

4.  Regarding the applicant’s request that his separation be changed to a medical discharge in recognition of his combat related injuries, including the determination that he suffered PTSD, there is no evidence that he suffered any wounds that justify a medical discharge.  Insofar as his PTSD condition is concerned, since this condition was recognized subsequent to his service, it should be appropriately treated within the confines of the VA.

5.  Insofar as expunging his court-martial record is concerned, the statutory authority under which this Board was created precludes any action by the Board which would disturb the finality of a court-martial conviction.

6.  In view of the foregoing, there appears to be 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

                       DENY APPLICATION




		Karl F. Schneider
		Acting Director