RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060013413 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

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 requests, in effect, that his bad conduct discharge (BCD) be upgraded to general, and that he be awarded the medals that he earned.

2.  The applicant states, in effect, that he served honorably in the Korean War but when he was sent back to the United States with only 4 months remaining to serve, he went absent without leave (AWOL) several times and received a BCD.
  
3.  The applicant provides a copy of congressional correspondence, Enlistment Record (D Form 4), Report of Separation from the Armed Forces of the United States (DD Form 214), an extract of the court-martial summary, an extract of his personnel records, Casualty Report (FEC AGO Form 241A-1), Department of the Army Battle Casualty Notification (WD AGO Form 0365), and orders promoting him to corporal (temporary), pay grade E4. 

CONSIDERATION OF EVIDENCE:

1.  On 9 January 1951, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 1745 (Light Weapons Infantryman).  

2.  On 3 August 1951, the applicant was assigned for duty as an ammunition bearer with the 196th Infantry Regiment, in Alaska.  After 9 months he volunteered for duty in the Republic of Korea.

3.  On 5 May 1952, the applicant was assigned for duty as a light weapons infantryman with Company A, 224th Infantry Regiment, in the Republic of Korea. 

4.  Records show that the applicant was awarded the United Nations Service Medal and the Korean Service Medal on 5 May 1952; the Combat Infantryman Badge on 8 July 1952; and on 5 January 1953, a bronze service star to be affixed to his Korean Service Medal.

5.  On 6 November 1952, the applicant was reassigned as a rifleman with the 
7th Infantry Regiment, 3rd Infantry Division.

6.  WD AGO Form 0365, dated 6 December 1952, indicates that the applicant sustained a flesh wound of the upper left arm by mortar fire while on patrol against opposing forces on 1 December 1952.  The FEC AGO Form 241A-1, dated 3 December 1952, indicates that the applicant was medically evacuated. His name appears on the Korean War Casualty Roster.
7.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Korea.  This publication shows that the 7th Infantry Regiment, 3rd Infantry Division, during the time of the applicant's assignment, was cited in General Orders 71, dated 1952 for award of the Distinguished Unit Commendation [currently known as the Meritorious Unit Commendation].  This publication further shows that the 224th Infantry Regiment, 40th Infantry Division, during the time of the applicant's assignment, was cited in General Orders 
24 and 50, dated 1954 and in General Orders 41, dated 1955 for award of three Republic of Korea Presidential Unit Citations.

8.  On 9 January 1953, the applicant departed the Republic of Korea for duty with the 5010th Area Services Unit, Fort Custer, Michigan.  He was subsequently reassigned with this unit to Fort Sheridan, Illinois.  

9.  On 10 April 1953, the applicant was convicted by a summary court-martial for AWOL from 13 March to 7 April 1953.  His sentence consisted of confinement at hard labor for 30 days and forfeiture of $50.00 pay.  

10.  On 1 September 1953, the applicant was reassigned to the 8th Antiaircraft Artillery Battalion at Camp Lucas, Michigan.

11.  On 30 October 1953, the applicant was convicted by a special court-martial for AWOL from 1 September to 12 October 1953.  His sentence consisted of confinement at hard labor for 30 days (suspended) and forfeiture of $34.00 pay per month for 4 months.

12.  On 9 February 1954, the applicant was convicted by a special court-martial for AWOL from 7 December 1953 to 19 January 1954.  His sentence consisted of confinement at hard labor for 3 months and forfeiture of $30.00 pay per month for 4 months.  

13.  On 21 February 1954 the applicant again went AWOL.  He was apprehended on or about 7 June 1954.

14.  On 19 June 1954, charges were preferred under the Uniform Code of Military Justice (UCMJ) for desertion, in violation of Article 85.  

15.  On 30 June 1954, the applicant, at a general court-martial (GCM) pled not guilty to the charge of desertion and guilty to the lesser included offense of AWOL for the period from 21 February to 8 June 1954.  The plea of guilty to the 
offense of AWOL was made without any agreement with the convening authority for clemency in return.  The court found the applicant, despite his plea to a lesser offense, guilty of desertion.

16.  During the GCM, the applicant made an unsworn statement through his defense counsel, stating, in part, that he was married at the age of 20 to a
16-year old girl.  They lived together for 3 weeks in 1953, but she did not go with him when he was reassigned to his new station.  She wrote to him asking for a divorce in order to remarry.  He went AWOL to straighten out his marital status.  The [divorce] attorney would not file the divorce until his fee of $300.00 was paid. Also, while he was home his father was in need of medical attention and a brother required an operation.  He earned the $300.00 but gave it to his father to help defray medical expenses.  

17.  The court found him guilty of the desertion charge and sentenced him to total forfeitures, confinement at hard labor for 9 months, and a bad conduct discharge. 

18.  On 9 July 1954, the Staff Judge Advocate (SJA) summarized the applicant's service and recommended that the findings of guilty and the sentence be approved.  The SJA further recommended that the accused be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas. 

19.  On 9 July 1954, the convening authority approved the sentence.  The Board of Review, United States Army, affirmed the sentence on 22 July 1954.

20.  On 15 July 1954, the Confinement Officer, Fort Sheridan, Illinois, opined that the applicant was potentially restorable.    

21.  On 5 August 1954, the sentence having been affirmed pursuant to Article 66, UCMJ and the provisions of Article 71c, UCMJ, had been complied with, the convening authority ordered the BCD executed. 

22.  On 17 September 1954, the applicant's bad conduct discharge was executed.  He was issued a DD form 214 for his service from 9 January 1951 to 17 September 1954, showing his creditable service as 2 years, 8 months, and 
9 days.  He accrued 147 days of lost time prior to his normal expiration term of service (ETS) and another 218 days lost after ETS.   Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) and Item 29 (Wounds received as a result of action with enemy forces) are blank.

23.  On 5 October 1954, the Classification Board, United States Disciplinary Barracks, Fort Leavenworth, Kansas, convened to consider the applicant for restoration and clemency.  Based on the applicant not desiring to be restored, repeated AWOL's, lack of motivation, a psychiatric diagnosis, and a recommendation against restoration, parole or clemency, the board recommended that he not be restored or given clemency.  The recommendation was approved by the commandant.

24.  On 3 February 1955, the applicant was released from confinement.  He acknowledged receipt of his Bad Conduct Discharge Certificate and Letter of Warning from the commandant.

25.  Army Regulation 672-5-1(Awards), in effect at the time, provided, in pertinent part, that a medal will not be awarded or presented to any individual whose entire service subsequent to the time of the distinguished act, achievement, or service has not been honorable.

26.  Army Regulation 672-5-1, provided, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.  The statutory time limits pertaining to award of military decorations do not apply to the Purple Heart.  Award of the Purple Heart may be consummated at anytime after submission of documented proof that the criteria have been met.  The Purple Heart is awarded in the name of the President of the United States to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the United States Armed Services after 5 April 1917, has been wounded or killed, or who has died or may hereafter die after being wounded in any action against an enemy of the United States.  While clearly an individual decoration, the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The applicant's statement of mitigating circumstances, as presented by his counsel during his court-martial, was considered by the court-martial.  There is no evidence that his unauthorized absences were a reasonable solution to his problems.  
3.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his discharge.

4.  The evidence of record clearly shows that the applicant was wounded in action against a hostile force on 1 December 1952; received medical treatment, and is "entitled" to the Purple Heart.  Therefore, it should be awarded to him.

5.  The evidence of record clearly shows that the applicant was awarded the National Defense Service Medal, United Nations Service Medal, Combat Infantryman Badge, and the Korean Service Medal with a bronze service star.  There is no evidence showing that any of these decorations were revoked or otherwise denied to the applicant.  Therefore, his records should be corrected to show these awards.

6.  General Orders 71, dated 1952, show that the applicant's unit was awarded the Meritorious Unit Commendation.   Therefore, his records should be corrected to show this unit award.

7.  General Orders 24 and 50, dated 1954, and General Orders 41, dated 1955, show that the applicant's unit was awarded the Republic of Korea Presidential Unit Citation on three different occasions in 1951 and 1952.   However, by the time that these orders were published, the applicant was charged, convicted and sentenced to a bad conduct discharge.  Therefore, his records should not be corrected to show these three foreign unit awards.  

8.  The applicant's wounds were not properly recorded in Item 29 of his DD Form 214 showing that he received a wound to his upper left arm while in action near Chorwon, Korea on 1 December 1952.   Therefore, his records should be corrected to show this event.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__EM___  __CLG__  ___MJF__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the Purple Heart for wounds received in action against a hostile force on 1 December 1952;

	b.  showing in Item 27 of his DD Form 214 award of the National Defense Service Medal, United Nations Service Medal, Purple Heart, Meritorious Unit Commendation, Combat Infantryman Badge, and the Korean Service Medal with a bronze service star; and

	c.  showing in Item 29 of his DD Form 214 the notation “Flesh wound upper left arm; near Chorwon, Korea; 1 December 1952.”

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of his bad conduct discharge to general under honorable conditions and showing that he was awarded the Republic of Korea Presidential Unit Citation.




__     Curtis L. Greenway___
          CHAIRPERSON




INDEX

CASE ID
AR20060013413
SUFFIX

RECON
 
DATE BOARDED
20070412
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19540917
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.
110.0000
3.

4.

5.

6.