RECORD OF PROCEEDINGS


         IN THE CASE OF:



         BOARD DATE: 02 MARCH 2004
         DOCKET NUMBER: AR2003093159


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Robert Duecaster		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

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


1. The applicant requests that his dishonorable discharge be upgraded to honorable.

2. The applicant provides a laundry list, dated 24 January 2003, of reasons why his discharge should be upgraded to include, it is an injustice for him to continue to suffer the adverse consequences of a bad discharge; under current standards, he would not have received the type of discharge that he did receive; his average conduct and efficiency ratings and proficiency marks were good; he received a Purple Heart and other decorations and his unit received a letter of commendation; he fought and served his country; he has been a good citizen since his discharge; he was young and immature; he had severe psychological impairments because of his exposure to combat; his lack of education and his mental status impaired his judgment; his AWOL (absent without leave) status was brief and he returned to his unit; his ability to serve was impaired by his deprived background; he was not able to serve in the right manner; his command abused its authority; he was not in his right mind when he returned from overseas; and he should have received a medical discharge based on his severe depression after being wounded in action.

3. In providing those reasons, he requests that a detailed explanation be provided if the Board disagrees with his reasons; and states that the presumption of regularity that might normally permit the Board to assume that the Army acted correctly did not apply to his case because of the evidence that he submits. He states that he went overseas to serve his God and country. Terrible things happened. At no time did he intentionally want to show disrespect to the service or his country. He requests that the Board restore dignity to his final years and respect his service as a combat veteran.

4. The applicant provides a 4 January 2003 letter from his son to two individuals thanking them for their help. In that letter he mentioned his father's participation in the Anzio invasion in Italy, his father being wounded, almost dying, and his months in the hospital thereafter. He stated that his father had a chance to go home but volunteered to go to France. He commented on his father's brief 4 days of AWOL, his court-martial, and imprisonment, while his young sons waited for him. He stated that his young, uneducated parents deserved better. He stated that he hoped they could help before they both died. Additionally, the applicant provides:

•         An article about various campaigns and battles during World War II, with comments thereto, apparently by the applicant's son.

•         A copy of a 22 February 1943 document ordering the applicant to report for induction.

•         Copies of an identification card, registration certificate, change of address notification, a photograph, a Selective Service System classification card, and an envelope.

•         A copy of a telegram from The Adjutant General informing the applicant's wife that her husband was slightly wounded in action in Italy on 22 November [year not specified].

•         A copy of a 16 June 1944 congratulatory proclamation from the Commanding General, 36th Infantry Division to the men of that division, praising their performance on the battlefield. A note on that document, apparently penned by the applicant to his wife – "I hope you are proud of … from your husband …"

•         Copies of photographs, e.g., signs (Greetings from Camp Wolters, Welcome to Mineral Wells), soldiers, the Purple Heart, a qualification badge, newspaper articles concerning the 36th Infantry Division's actions at Salerno, a postcard from the applicant to his wife, an article on Mineral Wells, Texas, barracks, a city [Mineral Wells], a map, a 14 January 1946 letter from the applicant to his wife, and a marriage certificate.

•         A 9 December 2002 letter from the National Personnel Records Center notifying the applicant of the 1973 fire that destroyed records, and advising him that his record was probably one that was destroyed. That notification indicated that a certification of military service was enclosed.

•         A 6 December 2002 Certification of Military Service, which shows that the applicant was a member of the Regular Army from 24 February 1943 to 12 November 1944, and that he was dishonorably discharged.

•         A 26 August 2002 letter from the National Personnel Records Center requesting the signed consent of the applicant.

•         An NA Form 13075 (Questionnaire About Military Service), completed by the applicant for the purpose of applying for VA (Department of Veterans Affairs) health services.

•         A 28 January 2003 letter to this Board from a clinical social worker of the Biloxi [Mississippi] Vet Center on behalf of the applicant, in which that person stated that the applicant's request for medical services was denied based on insufficient information on his discharge status, and who requested that the Board quickly review the applicant's status because of his age and [poor] health.

CONSIDERATION OF EVIDENCE:

1. The applicant’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 applicant’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.

2. Information from the Hospital Admission Cards created by the Office of The Surgeon General shows that the applicant was wounded in action in November 1943, sustaining a shell fragment wound to his lumbar spine, and that he was hospitalized until sometime in February 1944.

3. The applicant's payroll document for November 1944 shows that he was a member of Headquarters Company, 3d Battalion, 143d Infantry Regiment. That document indicated that the applicant was AWOL from 15 October 1944 to 1 November 1944; that he was due combat infantry pay from 1 September 1944 to 14 October 1944; and that his Combat Infantryman Badge was withdrawn on 15 October 1944. That document showed that General Court Martial Order Number 129, dated 10 November 1944, directed that the applicant be dishonorably discharged from the service, to forfeit all pay and allowances due, and to be confined at hard labor for ten years; but that the dishonorable discharge was suspended until the applicant was released from confinement.

4. General Court-Martial Order Number 349, Headquarters, Second Service Command, Governors Island, New York, dated 26 June 1945, shows that on 19 June 1945 the applicant, then a general prisoner, was arraigned, tried, and found guilty of AWOL (violation of the 61st Article of War) from the Second Service Command Rehabilitation Center at Fort Totten, New York on or about 31 May 1945 until he surrendered himself to military authority on or about 5 June 1945; and guilty of breaking his parole (violation of the 96th Article of War) on or about 31 May 1945. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for three years.

5. On 26 June 1945 the Second Service Command Judge Advocate reviewed the general court-martial record. That review indicated that the applicant was sentenced to a dishonorable discharge on 7 November 1944, per Headquarters, 36th Infantry Division General Court-Martial Order Number 129, dated 10 November 1944, and that the reviewing authority suspended the dishonorable discharge. That review also showed that the applicant made an unsworn statement to the effect that he was married, had two children, fought in Italy, was wounded on 22 November 1943, and hospitalized in Africa; he recovered and rejoined his outfit and continued fighting, going into Anzio, through Rome and France; landed in the invasion of Southern France and continued on to the border of Germany, where he was court-martialed for failing to report back to his unit; that he returned to the United States at the rehabilitation center, and was sent to Fort Slocum; that his wife informed him that his son had been sick and his brother had been killed, and that while under the influence of alcohol, he left Fort Totten.

•         The Acting Judge Advocate determined that the record was legally sufficient to sustain the findings and the sentence, and that there were no errors or irregularities which adversely affected any of the substantial rights of the applicant. He stated that the applicant had been given one opportunity to rehabilitate himself and that he had failed. He recommended that the suspension of the dishonorable discharge adjudged against the applicant be vacated and the dishonorable discharge be ordered executed; and that only so much of the sentence as provided for confinement at hard labor for 3 years be approved and ordered executed.

6. On 26 June 1945 the convening authority approved only so much of the sentence adjudged on 19 June 1945 as provided for confinement at hard labor for three years.

7. On 26 June 1945, per General Court-Martial Order Number 355, Headquarters, Second Service Command, the suspension of the applicant's dishonorable discharge that he had received on 10 November 1944 was vacated and the dishonorable discharge was ordered to be executed.

8. On 21 January 1946 a Judge Advocate General Corps officer prepared data about the applicant for clemency consideration. The form showing that data indicates that the applicant was picked up by the military police and returned to his organization in France on 2 November 1944, and that on 4 November 1944 was ordered to report to his company commander for duty, an order which the applicant refused to obey, saying that he couldn't take it. The applicant's company was before the enemy on that day. The applicant was court-martialed for violation of the 64th Article of War, pled not guilty, admitting that he refused to obey the order because he couldn't take any more combat. That form indicates that the applicant was sentenced to 25 years confinement, which was reduced to 10 years by the reviewing authority. The form provided the information concerning his court-martial on 19 June 1945. It also showed that the applicant had received a summary court-martial on 26 March 1943 for AWOL for six days, a summary court-martial on 19 May 1943 for AWOL for 8 days, and a summary court-martial on 9 May 1944 for failure to obey a standing order.

•         The officer indicated that the applicant was mentally responsible, with inferior intelligence, that he had many psychopathic traits, was immature and unstable. He indicated that on 4 October 1945 the applicant's sentence in excess of 10 years was remitted in view of the applicant's immaturity and severe sentence.

•         The officer stated that the applicant joined the 36th Infantry Division in September 1943 at Salerno, entered combat on 15 November 1943, was wounded on 22 November 1943, and hospitalized until 17 February 1944. He served in the rest of the Italian campaign and participated in the invasion of southern France. He was awarded the Purple Heart and the Combat Infantryman Badge. Prior to his first trial a psychiatric diagnosis of psychoneurosis, anxiety state, mild, was made.

9. He recommended the confinement in excess of 3 1/2 years aggregate be remitted. On 12 February 1946 the applicant's confinement in excess of 3 1/2 years was remitted. On 13 March 1947 his confinement in excess of 3 1/4 years was remitted.

10. On 31 July 2003 a Member of Congress (MC) appealed on behalf of the applicant requesting that his dishonorable discharge be upgraded to honorable. The MC recounted the trauma experienced by members of the applicant's family upon learning that the applicant had been dishonorably discharged from the Army. He stated that a member of his staff had contacted a number of men who served in the 36th Infantry Division, and they and historians all agreed that they were heroic. He stated that the applicant was a member of the 143d [Infantry Regiment]. He stated that during the applicant's time with his unit, members received numerous awards and citations, to include 15 awards of the Medal of Honor, and over 27,000 awards of the Purple Heart. He stated that those who balked were not cowards but men who had reached the saturation point before others.

•         The MC made reference to the first gulf war, indicating that the applicant and others in the 36th survived and performed in similar harrowing circumstances, but for months on end. He stated that he believed that the entire 36th was suffering from battle fatigue or post-traumatic stress disorder (PTSD).

•         The MC cited the circumstances that caused the applicant's AWOL while serving time at Fort Totten, stated that when the applicant received word about the death of his brother, he got drunk and went AWOL, leading to his dishonorable discharge. He stated that just before the Battle of the Bulge the applicant was again wounded. He suffered from battle fatigue and balked at returning to his unit. He stated that any Soldier in Iraq who had been exposed to that much combat and who had twice been wounded in two separate occasions, would never have been ordered back to combat, let alone held accountable for his action.

•         He stated that for 57 years the applicant lived in fear of being found out. He stated that the most ironic part of the story was that the applicant's exploits and experiences were all true. He stated that the applicant fought gallantly from May 1943 in Africa until he refused to continue in November 1944. He started that if he had been in Vietnam he would have returned a hero probably after his first award of the Purple Heart.

•         The MC stated that the applicant was in fairly good health in December; however, the burden of grief and shame had taken its toll, and he would not live more than a few more months. He requested that the Board let the applicant pass in peace with the knowledge that the nation appreciated his contributions and forgave his transgressions. He stated that the applicant did not desert under fire, strike an officer or betray his country; but just had had enough.

11. The table of maximum punishments authorized by the Manual for Courts-Martial, then in effect, provides for confinement at hard labor three days for each day of AWOL (violation of the 61st Article of War) and three months for violation of condition of parole by a general prisoner (violation of the 96th Article of War); however, the limitations upon punishments for AWOL from a station or camp in violation of Article of War 61 were suspended until further order as to offenses committed after 1 December 1942.

12. The table of maximum punishments for willful disobedience except in time of war or grave public emergency of the lawful order of a commissioned officer in the execution of his office (violation of the 64th Article of War) provides for a dishonorable discharge and confinement at hard labor not to exceed five years.

13. That manual states that if an accused is found guilty by the court of two or more offenses for none of which dishonorable discharge is authorized, the fact that the authorized confinement without substitution for such offenses is six months or more, will authorize dishonorable discharge and total forfeitures.

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DISCUSSION AND CONCLUSIONS:

1. The applicant's service with the 36th Infantry Division during World War II is duly noted. The actions of the Soldiers of that division during the Italian campaigns and the fighting in France are well documented, as are the actions of all Soldiers who underwent combat during the war. The applicant was wounded, recovered, and was returned to duty. The fact that he continued to serve and to participate in combat under harrowing conditions is significant.

2. The applicant's combat participation during the war is not belittled. Noted however, is evidence showing prior acts of misconduct, to include three periods of AWOL prior to his court-martial in November 1944 for refusing to obey an order to return to his unit. The evidence indicates that his last period of AWOL was immediately prior to this court-martial and that he was apprehended by military police.

3. The applicant's state of mind, his mental and physical condition, in 1944 cannot be fathomed. That he was under a lot of stress goes without saying. By the same token, however, is it assumed and understood that there were thousands like him – infantryman, in combat under dreadful conditions, under a lot of stress, who did not refuse to do their duty. Notwithstanding the applicant's contentions, the sentence given, in November 1944, a dishonorable discharge, considering the seriousness of his offense was proper and in accordance with the provisions of law.

4. Those in command made the decision to punish the applicant for his disobedience, an act of misconduct that could not be tolerated, especially during wartime. It is not appropriate, in this case, some 60 years later, to question the judgment of those commanders who were there at that time.

5. Noted is the applicant's contentions of good post-service conduct, his argument that he was young and immature at the time of his misconduct, and his contention that his ability to serve [honorably] was impaired by his deprived background; however, none of these factors, in sum or individually, warrant the relief requested. To grant the applicant's request, an honorable discharge, would be unfair and to be a disservice to those thousands of Soldiers who served honorably during World War II.

6. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.
BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__FNE __ __AAO __ __RD ___ DENY APPLICATION

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.




                  __ _ Fred N. Eichorn ____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003093159
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040302
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.