RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	8 January 2008  
	DOCKET NUMBER:  AR20060015477 


	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.  

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	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, the sister of a deceased former service member (FSM), requests, in effect, that her brother's dishonorable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that the FSM's unit, with others, was the first to land on the beach at Guam during World War II, not the Marines.  The Government somehow lost them and they were left over there.  They became battle fatigued and sick.  Some went into the village for help.  When the Government went to get them out, a lot of them were sick in the village.  Her brother was sick with Rheumatic Fever.  He was put into the Government hospital.  In the letter he wrote to their aunt dated 6 March 1944, he stated he had just come out of the hospital that day.  Her brother, she states, did not desert the Army - the Army deserted him.  After 10 years had passed, the Government offered full compensation to those who were left over there.

3.  The applicant asks the Board to read the letter the FSM wrote to their aunt.  She states, that from being sick and with the dishonorable discharge the Government gave him, he could not get a job or help; some reason because he was black.  In those days with a dishonorable discharge people looked down on you.  He felt the Government knew what had happened to send out that notice.  They could have changed it automatically.  She adds that her brother started drinking, and his life went down hill.  He died at the age of 37.  She wrote to President Kennedy, but then, she did not know what to do.  At the time her brother was also very young and didn't know what to do.  She has since learned that it can be done.

4.  She concludes her request by adding that she has worked as a civilian for the Army for 23 and a half years.  She has received information from different people. She has been sick and in a lot of pain.  She wants this upgrade of discharge for her brother whom she promised at his gravesite.

5.  In support of her request, the applicant submitted an NA Form 13038, Certification of Military Service, with an issue date of 31 August 2005; a copy of her brother's Social Security Account Number card; two Selective Service System - Notice of Classification, dated 28 September 1948 and 11 October 1948, respectively; a copy of a "V-Mail" letter her brother addressed to their aunt in Brooklyn New York, on 6 March 1948; and a copy of her brother's death certificate in which she is named the informant.



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 WD AGO Form 53-57, Enlisted Record and Report of Separation – Dishonorable Discharge, shows he was inducted on 9 June 1943 and entered active duty on the same date at the age of 20 years and 9 months.

3.  The FSM's WD AGO Form 53-57, shows he was awarded and served in the military occupational specialty (MOS) 590 (Laborer) in the PTO (Pacific Theater of Operations) from 1 November 1943 to an unknown date.  However, the evidence shows for the period 5 December 1945 through 3 June 1946, he was a prisoner confined by military authorities.

4.  The FSM's WD AGO Form 53-57, shows the highest grade he held was Private.  He was discharged in this grade on 4 June 1947 at Fort Leavenworth, Kansas, in compliance with the sentence of a general court-martial and Army Regulation (AR) 615-364.  A the time of his discharge, the FSM had 4 months and 3 days of creditable continental service and 1 year, 4 months, and 16 days creditable foreign service.

5.  A statement of military service which was furnished to the FSM on 14 July 1949 shows the same information except that it shows he entered active duty on 23 June 1943 at Camp Upton, New York.  This same statement of military service shows the "Enlisted man lost eight hundred and seventy-nine (879) days under 107th Article of War."  He was issued the Philippine Liberation Ribbon with one bronze service star and the World War II Victory Medal.



6.  The evidence shows that on 5 December 1945, the FSM was tried and found guilty, contrary to his plea, by a general court-martial, of wrongfully and without proper authority having in his possession Government property in the amount 
of $841.35.  He was sentenced to be confined at hard labor for 3 years, to forfeit all pay and allowances due or to become due, and to be dishonorably discharged from the service.

7.  On 27 May 1946, so much of the sentence that provided for the FSM's confinement at hard labor in excess of 2 years was remitted.  On 3 June 1946, the FSM was transferred from the United States Army Forces Western Pacific to the Pacific Coast Branch, United States Disciplinary Barracks, Camp McQuaide, California.  On 30 January 1946, the FSM was transferred to the US Disciplinary Barracks, Fort Leavenworth, Kansas.

8.  There is no evidence the FSM was ever declared a deserter from the Army while he served in the PTO during World War II or that the Army deserted the FSM and his fellow Soldiers in Guam during World War II.  There is also no evidence the FSM was ever reported missing in action as it was the Army's responsibility when a Soldier could not be accounted for.

9.  The evidence shows that the FSM reported for induction at Brooklyn, New York. During his pre-induction physical examination on 4 June 1943 he reported to the examining official he had experienced Rheumatic Fever in 1941.  The D.S.S. Form 221, Report of Physical Examination and Induction, that was completed at the time of the FSM's induction shows, in Item 58 (Other defects and/or diseases or other remarks), the FSM's experience with Rheumatic Fever in 1941.  This same form also shows he was a parolee and he had been recommended for induction by his PCO (Parole Control Officer) on the basis of meeting intelligence standards on tests administered.

10.  The applicant's records contain several documents related to medical treatment he received while he served on active duty.  None of these medical treatment records show a diagnosis of Rheumatic Fever.  These records show on 12 October 1943, the FSM received medical treatment for an infection.  He was treated and was returned to duty on the same date.  On 2 March 1944, he was treated on an out-patient basis at the 23rd Field Hospital.  The FSM was returned to duty on the same date.  The FSM was admitted to the 35th Station Hospital and was provided medical treatment for a stomach ailment on 12 May 1944.  He was transferred to the 65th Station Hospital for additional treatment 


and was released to full duty on 15 May 1944.  The FSM was admitted to the 23rd Field Hospital for medical observation of his mental state on 14 July 1944.  He was released from the hospital and returned to his unit for full duty on 19 July 1944.

11.  On 20 December 1945, the results of an "Initial Entrance Interview", which was conducted by a psychologist assigned to the Office of the Neuropsychiatrist, Philippine Detention and Rehabilitation Center, were recorded and filed in the FSM's service personnel record.  This record states he was found guilty of dealing in the "Black Market."  He claimed innocence but he admitted he was caught driving a truck loaded with Government property.  He claimed he was merely driving the truck in order to pick up some girls – that the truck was loaned to him.  The psychologist opined, the story was a very weak story and difficult to believe in 
view of the FSM's past record.  The FSM had four previous courts-martial; two for 
being absent without leave (AWOL), one for assault, and one for insubordination 
toward an NCO (noncommissioned officer).  The psychologist also noted the FSM 
had served one year in confinement of a five year sentence for armed robbery, in New York State.  The impression he had developed from this interview was that the FSM had some beginning elements of criminalism but he was not beyond being salvaged.

12.  A WD AGO Form 95-I, Classification Summary Continuation Sheet, dated 21 August 1946, shows in the section titled, "Previous Military Offenses”, the FSM was convicted by a summary court-martial on 5 October 1943 of being absent without leave on 9 May 1944 and of being disorderly in camp on
27 August 1944 of assault.  It also shows he was convicted by a special court-martial on 11 September 1945 of willfully disobeying an NCO and on 13 August 1945 of being AWOL and carrying a concealed weapon.

13.  On 14 February 1949, the FSM applied to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his dishonorable discharge to honorable.  In his application he stated he had not been given a chance to prove his innocence, he was not permitted to produce the guilty person, and the investigating officer was not familiar with the location within the city and the outskirts of Manila (Philippines).  He concluded he could have produced conclusive evidence of his innocence at the time.

14.  On 8 March 1949, the FSM was advised by the ABCMR that it was not authorized, unless specifically directed by the Secretary of the Army, to review any case involving the sentence of a general court-martial, or any case wherein final action had been taken by the President of the United States, the Secretary 
of the Army, the Under Secretary of the Army, or the Assistant Secretary of the Army.  The FSM's application for an upgrade of his discharge was forwarded to the Office of the Secretary of the Army for a determination if his case qualified for a review.

15.  On 12 August 1949, the FSM was notified his application and Army records had been carefully reviewed and no reasonable doubt of his guilt of the offense or offenses of which he was convicted was found and they failed to reveal any indication of a probable error or injustice in his trial or sentence.  He was further advised the Secretary of the Army had concluded there was no justification for a formal hearing and review of his case by the ABCMR.

16.  AR 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  AR 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 separation specifically allows such characterization.

DISCUSSIONAND CONCLUSIONS:

1.  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 failed to submit evidence that would satisfy this requirement.

2.  The available evidence shows that the trial by court-martial of her brother was warranted by the gravity of the offenses charged.  It appears the FSM's conviction and discharge was affected in accordance with law and regulations in effect at the time.



3.  The evidence of record shows the FSM was convicted by a general court-martial, of wrongfully and without proper authority having in his possession Government property in the amount of $841.35.  He was found guilty and as part of the sentence imposed, he was ordered discharged with a dishonorable discharge.

4.  The evidence shows the FSM arrived in the PTO on 1 November 1943.  His whereabouts can be traced, by official documents, from this date to the date he was convicted, to the date he was confined, and to the date he was returned from his overseas place of confinement to his stateside place of confinement prior to his discharge at Fort Leavenworth, Kansas.

5.  There is no evidence the FSM and other Soldiers were deserted in Guam during World War II, as he apparently relayed to his sister and their aunt.  There is no evidence the FSM and other Soldiers were declared missing in action as was the requirement when Soldiers were unaccounted for when units, because of battle conditions, had to evacuate an area hastily in order to avoid confrontation with a larger, better equipped, enemy force.

6.  The applicant contends her brother became battle fatigued and sick.  When the Government went to get them out, a lot of them were sick in the village.  Her brother was sick with Rheumatic Fever and was admitted into the Government hospital.  In the letter the FSM wrote to his aunt dated 6 March 1944, he stated he had just come out of the hospital that day.

7.  Medical records in the FSM's service personnel records failed to show he suffered from battle fatigue.  Medical-related records do show the FSM had contracted Rheumatic Fever in 1941, years before he was inducted into the Army.  There is no evidence he contracted Rheumatic Fever again while he was on active duty.  The evidence also shows the FSM experienced other ailments for which he was treated and released back to full duty.  The FSM was twice hospitalized while in the PTO; however, he was not hospitalized for Rheumatic Fever either of these times.

8.  The applicant has provided no evidence to show that her brother's discharge was unjust and that it should now be upgraded to an honorable discharge.

9.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade her brother's, the FSM's, dishonorable discharge to an honorable 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




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          CHAIRPERSON



INDEX

CASE ID
AR20060015477
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080108
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.