RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080000668 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 undesirable discharge (UD) be upgraded to a fully honorable discharge HD, or in the alternative, that his 
15 September 1951 discharge for reenlistment be considered complete and unconditional; and that Item 29 (Other Service Training Courses Successfully Completed) of his separation document (DD Form 214) be corrected to show his military education.

2.  The applicant states, in effect, that he was previously punished by a 
Court-Martial for more serious offenses than the offense resulting in his discharge.  He states that he served and completed his punishment and was restored to duty each time, and that the UD he received was too harsh a punishment for returning from leave a few hours late, and should be upgraded to an HD, or in the alternative, he should be granted a complete and unconditional discharge based on his completion of his initial 3-year enlistment on 
15 September 1951.  He also states that Item 29 of his separation document does not reflect the military training he completed through the United States Armed Forces Institute (USAFI).

3.  The applicant further claims that the rank listed on his final DD Form 214 should read private first class (PFC/E-3), the rank he actually held at the time, instead of private/E-1 (PVT/E-1).  He further states that Item 10a (Highest Civilian Education Level Attained) of the DD Form 214 shows he completed four years of high school, but is should show that he earned his General Equivalency Diploma (GED), which he attained in 1952; Item 21 (Grade, Rate, or Rank at Time of Entry into Current Active Service) should reflect staff sergeant (SSG) instead of corporal (CPL)l; and Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) should include the Army Good Conduct Medal (AGCM).

4.  The applicant provides the following documents in support of his application:  Self Authored Statement; Army Review Boards Agency Letter; Birth Certificate; Separation Documents (DD Forms 214); Honorable Discharge Certificate; Military Training Certificates and Military Test Reports; and Department of Veterans Affairs (VA) Card.  


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 applicant's military personnel records show that he initially enlisted in the Regular Army (RA) and entered active duty on 16 September 1948, for a 3 year period.  He continuously served on active duty for 3 years until 15 September 1951, at which time he was honorably discharged.  The DD Form 214 issued to him on 15 September 1951, shows he was separated by reason of expiration term of service (ETS), and that he held the temporary rank of sergeant (SGT-T).  Item 17 (Years of Entry Other By Induction) confirms his initial enlistment period was 3 years, and Item 22 (Net Service Completed for Pay Purposes This Period) confirms he 3 years active duty service.

3.  On 16 September 1951, the applicant reenlisted in the RA and began the active duty enlistment under review.  The Enlistment Record (DD Form 4) confirms, in Item 6 (Enlisted in The Grade Of), that the applicant enlisted in the permanent grade of CPL/E-4.  

4.  The applicant's Service Record (DA Form 24) shows, in Section I (Appointments, Promotions, or Reductions), that he was advanced to the rank of corporal (CPL) on 23 January 1950, and that this was the highest permanent rank he attained while serving on active duty.  It also shows that he was advanced to the temporary rank of sergeant (SGT) on 29 May 1951.  It further shows that the applicant was reduced on at least four separate occasions and that his final reduction was to the rank of PV1 on 4 June 1957.


5.  Section 5 (Service Outside Continental United States) of the applicant's DA Form 24 includes an entry that shows the applicant served in Korea from 
25 February 1954 to 5 March 1955.  Section 9 (Medals, Decorations, and Citations) shows he earned the following awards during his active duty tenure:  Army of Occupation Medal (AOM) with Germany Clasp, AGCM, Korean Service Medal (KSM), and National Defense Service Medal (NDSM).

6.  The applicant’s Enlisted Qualification Record (DA Form 20), Item 17 
(Civilian Education) shows that the applicant completed 4 years of high school,
in Shickshinny, Pennsylvania.  

7.  The applicant's record contains a Record of Court Martial Conviction 
(DA Form 26), which shows that on 28 April 1953, a Special Court-Martial (SPCM) convicted him of being absent without leave (AWOL) for 59 days.  A Search Request (ARCEN Form 213) on file confirms the period of this AWOL was from on or about 10 February through on or about 9 April 1953.  The approved sentence was confinement at hard labor for 3 months and a forfeiture of $65.00 a month for 3 months.  

8.  The DA Form 26 also shows that on 14 December 1953, a SPCM convicted the applicant of being AWOL from on or about 10 July through on or about 
9 November 1953.  The approved sentence was confinement at hard labor for 
5 months and a forfeiture of $39.00 a month for 5 months.  It also shows that on 20 August 1955, a SPCM convicted him of being AWOL from on or about 
20 June through on or about 26 July 1955.  The approved sentence was confinement at hard labor for 6 months and a forfeiture of $44.00 a month for 
6 months.  Finally, it shows that on 23 March 1957, a summary court martial (SCM) convicted him of being AWOL from on or about 13 through on or about 
17 March 1957.  The approved sentence was a reduction to PV1.  

9.  On 11 April 1957, the applicant underwent a psychiatric evaluation that diagnosed his passive aggressive reaction characterized by frequent and chronic AWOL.  He was found to be mentally responsible to distinguish right from wrong and to adhere to the right.  The evaluation cleared the applicant from both mental and physical defects and recommended he appear before a board of officers for consideration for separation under the provisions of Army Regulation 635-208.

10.  On 29 April 1957, the applicant’s commander recommended he appear before a board of officers to be considered for separation under the provisions of Army Regulation 635-208.  The unit commander cited the applicant’s 
court-martial convictions; disregard for authority in the face of trouble from home; aggressive reaction behavior; inability to follow orders in time of stress; and the psychiatric findings as the basis for his separation recommendation.  
11.  On 21 May 1957, a board of officers convened to consider the applicant’s case.  The applicant was present at this hearing and by his own desire; he was not represented by counsel.  After considering the evidence and testimony, the board of officers recommended that the applicant receive an UD, for undesirable habits and traits.

12.  On 27 May 1957, the separation authority approved the recommendation of the board of officers, and on 4 June 1957, the applicant was discharged accordingly.

13.  The separation document (DD Form 214) issued to the applicant upon his discharge on 4 June 1957, confirms he completed a total of 7 years, 5 months, and 26 days of creditable active military service, and that he received an UD.  Item 3a shows he was separated in the rank of PV1; Item 10a shows he completed “4 years High School,” Item 21 contains the entry “Corporal”; and
Item 26 shows he earned the following awards:  Korean Service Medal; United Nations Service Medal; and National Defense Service Medal.  Item 32 (Remarks) contains an entry that shows the applicant accrued 450 days of time lost due to AWOL and confinement, and the applicant authenticated this document with his signature in Item 34 (Signature of Person Being Transferred or Discharged).

14.  There is no evidence indicating that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 
15-year statute of limitations.

15.  The applicant provides a copy of his HD certificate issued upon his initial release from active duty.  He also provides two USAFI Certificates and Military Test Reports, which show he completed the Auto Mechanics 1 course on 26 December 1956 and the Auto Mechanics 2 course on 26 February 1957.

16.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service. The regulation provided, in pertinent part, that members who displayed undesirable habits and traits were subject to separation for unfitness.  The separation authority could award an HD or general, under honorable conditions discharge if supported by the member's overall record of service; however, an UD was normally considered appropriate for members separated for unfitness.  

17.  Public Law Number 95-126 provides that a service member will be considered to have been unconditionally discharged when the member satisfactorily completes the period of active service for which he or she was contractually obligated at the time of entry into such service.
18.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time of the applicant’s REFRAD contained item-by-item instructions for completing the DD Form 214 in Section III.   The instructions for Item 3a stated that it would contain the grade in which the member was serving at the time of separation.  The instructions for Item 10a stated to enter the highest civilian education taken from the DA Form 20.  The instructions for 
Item 21 stated to enter the actual grade in which the member entered on current tour of active duty, and the instructions for Item 26 stated to enter the decorations awarded or authorized during the period covered by the DD Form 214.  The instructions for Item 29 stated to enter all installation training courses, military correspondence courses, and off-duty courses successfully completed during the period covered by the DD Form 214 and the instructions for Item 32 stated to complete entries too long from other Items on the separation document.

19.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-20 provides guidance on award of the Korea Defense Service Medal (KDSM).  It states, in pertinent part, that it is awarded to members who served in Korea for 30 consecutive or 60 non-consecutive days between 
28 July 1954, to a date to be determined by the Secretary of Defense. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD was too harsh and should be upgraded to an HD was carefully considered.  However, the evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His record reveals an extensive disciplinary history that includes three separate court-martial convictions, and his accrual of 450 days of time lost due to being AWOL and in confinement.  As a result, his record he was not sufficiently meritorious to support the issuance of an HD or GD at the time of his discharge, nor it sufficiently meritorious to support an upgrade at this late date.  

2.  The applicant’s Service Record (DA Form 24) confirms he was reduced to the rank of PV1 on 4 June 1957; and his DA Form 20 confirms the highest level of civilian education he completed was 4 years of high school and that on 16 June 1951, he enlisted in the permanent rank of corporal.  As a result, the entries in Items 3a, 10a, and 21 of his separation document are supported by entries on his Service Record, and there is an insufficient evidentiary basis to support granting this portion of the requested relief. 
3.  Public Law Number 95-126 provides that a service member will be considered to have been unconditionally discharged when the member satisfactorily completes the period of active service for which he or she was contractually obligated at the time of entry into such service.  The applicant's record does show he completed his first 3-year enlistment and that his service for this period was characterized as fully honorable.  The DD Form 214 he was issued on 
15 September 1951, confirms the reason for his separation was expiration of term of service.  As a result, given he completed his first full period of enlistment, his discharge from this period of active duty service is considered complete and unconditional under the governing law implemented in 1995.  However, for clarity purposes, the entry “Soldier Has Completed First Full Term of Service" will be added to Item 38 (Remarks) of his 15 September 1951 separation document, and to Item 32 of his 4 June 1957 DD Form 214.  

4.  The applicant’s contention that Items 3a, 10a, and 21 of his 1957 DD Form 214 were in error was carefully considered.  However, there is insufficient evidence to support this claim.  The applicant's Service Record (DA Form 24) confirms he was reduced to the rank of PV1 on 4 June 1957; and his DA Form 20 confirms the highest level of civilian education he completed was 4 years of high school and that on 16 June 1951, he enlisted in the permanent rank of CPL. As a result, the entries in Items 3a, 10a, and 21 of his separation document are supported by entries on his Service Record and Enlisted Qualification Record, and therefore, there is an insufficient evidentiary basis to support granting this portion of the requested relief. 

5.  The applicant's contention that Items 26 and 28 of his 4 June 1957 DD Form 214 are in error was also carefully considered and found to have merit.  The evidence of record confirms that the applicant was awarded the AGCM, as confirmed by an entry on his DA Form 20, and that this award is not reflected on either of his separation documents.  In addition, based on his service in Korea, he is entitled to the KDSM, an award that was added to the Department of the Army’s inventory of awards subsequent his discharge.  Further, the applicant has provided certificates confirming his completion of two auto-mechanic correspondence courses in 1956 and 1957.  As a result, Item 26 of his final separation document should be corrected by adding the AGCM and the KDSM, and Item 28 should be corrected by adding the entries "USAFI Course CC741 (Auto Mechanics 1), December 1956" and "USAFI Course CC742
(Auto Mechanics 2), February 1957."  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending his 15 September 1951 DD Form 214 by adding the entry “Soldier Has Completed First Full Term of Service (16 September 1948-15 September 1951)" to Item 38; 

	b.  amending his 4 June 1957 DD Form 214 as follows:  Item 26 - add the Army Good Conduct Medal and Korean Defense Service Medal; Item 28 - add the entries "USAFI Course CC741 (Auto Mechanics 2) February 1957," "USAFI Course CC741 (Auto Mechanics 1) December 1956" and "USAFI Course CC742 (Auto Mechanics 2), February 1957"; and Item 32 - add the entry 
“Soldier Has Completed First Full Term of Service (16 September 1948-15 September 1951)"; and 

	c.  providing him a correction to his separation documents that reflect these changes.  

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 upgrading his Undesirable Discharge and to correcting Items 3a, 10a, and 21 of his 4 June 1957 DD Form 214.




      __________x____________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080000668


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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