IN THE CASE OF:	

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20080016060 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge be upgraded to an honorable discharge.  The applicant further requests that he be awarded the Purple Heart and any other awards and decorations to which he is entitled.

2.  The applicant states, in effect, that he was wounded by an enemy mortar round during a battle at Mung Dung Ne while serving in the Republic of Korea.  He states that he was hit by shrapnel and stones in his left leg and he also sustained hearing loss and blindness.  The applicant adds that he was transferred to the "120th Medics" for treatment and returned to his unit when he had "mostly recovered."  The applicant further states that an officer in his platoon put his name on a list for the Purple Heart and also recommended that he be recognized for outstanding performance of duty.  The applicant continues that as time passed, he developed a condition known as "shell shock."

3.  The applicant states, in effect, that following the war, he was reassigned to a duty station in Texas.  He further states that he went on leave to his hometown in Michigan and did not return to his unit on time.  The applicant continues that he attempted to return to his unit and attributes his absence without leave (AWOL) to his battle wounds, an inability to sleep, a state of confusion, and the negative influences he received from his wife and others.

4.  The applicant further states that he was apprehended by military police and confined in the stockade located in Kansas.  The applicant continues that he was stripped of his rank and medals and given a bad conduct discharge without being afforded an opportunity to explain the reasons for his actions or to have his good war record taken into consideration.  The applicant states he believed that even if he served the remaining weeks of his obligation in the stockade, he would have received a bad conduct discharge so he opted to accept the offer of a bad conduct discharge and be separated immediately.

5.  The applicant states that he fought honorably for his country and received both physical and mental wounds.  He adds that he is 74 years old, has cancer, and has been given 8 to 12 months to live.  The applicant concludes that it would give him great peace of mind to die knowing his country recognized the honorable service and sacrifice he has given.

6.  The applicant provides a statement which he dictated to the Chaplain of the Michigan 9th District American Legion to write on his behalf as documentary evidence in support of this application.

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 complete military records are not available 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 to conduct a fair and impartial review of this case.

3.  The applicant's available records show he enlisted in the Regular Army on 20 August 1951 for a period of 3 years and served until 23 December 1954, a period of 3 years, 4 months, and 4 days.  The applicant's service was terminated by a discharge under other than honorable conditions due to receiving a sentence by general court-martial.  The rank he held at the time of his discharge from active duty was private/pay grade E-1.

4.  The applicant's name does not appear on the Korean casualty roster and there is no evidence in the available records or the documents provided by the applicant which show that he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.

5.  Headquarters, Fort Riley, Kansas, Special Orders Number 280, dated 15 October 1954, show that the applicant was confined in the hands of military authorities in the Post Guardhouse at Fort Riley, Kansas, and assigned to the Headquarters Detachment of the 5021st Area Special Unit based at Fort Riley, Kansas.  These orders also show the reason that the applicant was confined was due to the fact that he was AWOL from his unit located at Fort Hood, Texas, from on or about 2 June 1954 until he was returned to military control in Detroit, Michigan, on or about 25 September 1954, a period of 115 days.

6.  On 2 November 1954, the Staff Judge Advocate (SJA) of Headquarters, Fort Riley, Kansas, examined and concurred with the findings of the applicant's record of trial by general court-martial which convened on 26 October 1954 at Fort Riley, Kansas.  The SJA review shows the applicant had three previous convictions and that his character of service, to date, had been unsatisfactory.  This document also shows the applicant was charged with violation of Article 86 of the Uniform Code of Military Justice for absenting himself from his unit without leave for the period 2 June 1954 to 25 September 1954.  The applicant pleaded guilty to this charge and was subsequently found guilty.  The applicant was sentenced to a bad conduct discharge and 6 months in confinement.

	a.  After consultation with his defense counsel, the applicant elected to make a sworn statement.  In substance, his statement was as follows:  "My father isn't able to work; he gets strokes.  I have seven brothers and seven sisters.  I have had 9 years of schooling.  I got to Korea in November of 1952.  I have the CIB [Combat Infantryman Badge], United Nations [Service] Medal, and the Bronze Star [Medal].  I became a corporal in Korea.  My AWOLs were caused by my father's illness, each time I thought he was going to die.  I tried to get a hardship discharge.  My last absence of the previous convictions was caused by a desire to get transferred out of the unit.  There was poor morale in our unit.  There was liquor being sold out in the field.  I want to stay in the Army and get an honorable discharge.  I've learned my lesson.  I might apply for a hardship discharge again if I get back to duty."  The defense offered in evidence a stipulation of facts contained in the accused's service record.

	b.  The applicant's record showed that prior to his most recent offense, he was AWOL on four occasions.  He was AWOL from 29 December 1951 until 12 February 1952 (45 days), for which he received his first trial by special court-martial on 5 March 1952; his sentence to confinement was suspended.  On 17 March 1952, the applicant went AWOL until 7 May 1952 (51 days).  He was again tried by special court-martial on 16 June 1952; the uncompleted portion of his sentence was suspended and he was sent to Korea in November of 1952, where he served until September of 1953.  As stated in the applicant's testimony, he received the CIB and the United Nations Service Medal for his service in Korea; however, award of the Bronze Star Medal was not shown in his record or the allied papers.  After his return to the United States, the applicant went AWOL again from 7 January 1954 until 29 January 1954 (22 days) and from 8 February 
1954 to 21 February 1954 (13 days).  He was tried by special court-martial for these offenses on 9 March 1954.

7.  Headquarters, Fort Riley, Kansas, General Court-Martial Order Number 134, dated 3 November 1954, shows that the applicant was charged with violation of Article 86 of the Uniform Code of Military Justice.  The specification was that he did absent himself from his organization without proper authority on or about 2 June 1954 and remain so absent until on or about 25 September 1954 (115 days).  The applicant pleaded guilty to this specification and charge and was subsequently found guilty.  The applicant was sentenced to be separated from the service with a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for 6 months.  The sentence was adjudged on 26 October 1954.

8.  Headquarters, Fort Riley, Kansas, Letter Order Number 998, dated 20 December 1954, shows that the applicant was discharged under the provisions of paragraph 1b of Army Regulation 615-364 (Enlisted Personnel - Discharge - Dishonorable and Bad Conduct) with a bad conduct discharge effective 23 December 1954.

9.  Army Regulation 615-364, in effect at the time, set forth the policy for administrative separation for bad conduct.  Paragraph 1b of the regulation provided, in pertinent part, that individuals would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.  When separation for bad conduct was warranted, a bad conduct discharge was normally issued with a characterization of service of under conditions other than honorable.

10.  Army Regulation 635-200 (Personnel Separations), 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
11.  Army Regulation 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 the Soldier’s separation specifically allows such characterization.

12.  Title 10, U.S. Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

13.  Army Regulation 600-8-22 (Military Awards) provides, 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 medical personnel, and the medical treatment must have been made a matter of official record.

14.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.

15.  Army Regulation 600-8-22 provides for award of the Korean Service Medal.  In pertinent part, the regulation states that the Korean Service Medal is awarded for qualifying service in the theater of operations between 27 June 1950 and 27 July 1954.

16.  The Government of the Republic of Korea issued the Republic of Korea War Service Medal (ROK-KWSM) to pay tribute to eligible Korean War veterans for their historic endeavors to preserve the freedom of the Republic of Korea and the free world.  The Department of Defense approved acceptance and wear of the ROK-KWSM.  To qualify for award of the ROK-KWSM, the veteran must have served between 25 June 1950 and 27 July 1953 and been on permanent assignment for 30 consecutive days or on temporary duty for 60 nonconsecutive days within the territorial limits of Korea, in the waters immediately adjacent thereto, or in aerial flight over Korea participating in actual combat operations or in support of combat operations.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his bad conduct discharge should be upgraded to an honorable discharge and that he should be awarded the Purple Heart and any other awards and decorations to which he is entitled were carefully considered and determined to have partial merit.

2.  Evidence shows the applicant completed a qualifying period of service for award of the Korean Service Medal.  Therefore, he is entitled to have his record corrected to show award of the Korean Service Medal.

3.  Evidence shows the applicant completed a qualifying period of service for award of the Republic of Korea War Service Medal.  Therefore, he is entitled to have his record corrected to show award of the Republic of Korea War Service Medal.

4.  Although the applicant contends that he was wounded while serving in the Republic of Korea, there is no corroborating evidence present in the available records and the applicant has not provided sufficient evidence which shows he was wounded as the result of hostile action, that the wound required treatment by military medical personnel, and the medical treatment was made a matter of official record.  Based on the foregoing, there is insufficient evidence to grant the applicant's request for award of the Purple Heart in this case.

5.  There is no evidence in the available records and the applicant has not provided sufficient evidence which shows that he was awarded the Bronze Star Medal.  Therefore, there is insufficient evidence to either award the applicant the Bronze Star Medal or to add the Bronze Star Medal to his record.

6.  The available record shows that the applicant was AWOL on five separate occasions for a combined total of 246 days.  The applicant apparently failed to respond appropriately to disciplinary measures and continued with his infractions of discipline.  There is no overt evidence of arbitrary or capricious actions by the command.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations at the time.

7.  Although the applicant contends that his discharge was unjust, he failed to provide sufficient evidence in mitigation of his misconduct other than his personal 

testimony.  While there is merit to the applicant's contention that his father was ill, he freely chose to go AWOL and compromised the special trust and confidence placed in a Soldier.  The applicant had the duty to support and abide by Army policies and by continuing to go AWOL, he knowingly risked a military career by engaging in continued misconduct.

8.  Evidence clearly shows that the applicant's entire period of service was taken into consideration by the general court-martial prior to rendering a decision in his case.  Based on the available evidence and the applicant's multiple infractions of discipline, administrative regularity is presumed in his discharge process and his service does not meet the standards of acceptable conduct and performance for an honorable or general discharge.

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 to show award of the Korean Service Medal and the Republic of Korea War Service Medal.

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 bad conduct discharge and awarding him the Purple Heart.



      ___________x______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080016060



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016060



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1