IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021240


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 upgrade of his undesirable discharge.

2.  The applicant states he is now 79 years old and has been an upstanding citizen since his military service.  He points out the following:

* He has been married for 54 years and raised 7 children
* He now has custody of 3 grandchildren
* He has been active in his church for over 50 years
* He earned his High School diploma at age 60 to show his children and grandchildren the importance of education
* He was an elected constable in Brooks County, TX for 11 years

3.  The applicant also states he served in the Korean War as an artilleryman with the 9th Regimental Combat Team (RCT).  Of his military service, he adds:

* He was 18 years old when he enlisted for 3 years
* He experienced discrimination as a Hispanic-American
* He was young and immature in Korea and suffered from PTSD (post traumatic stress disorder)
* His offense was being AWOL (absent without leave) for 109 days, but he served his full 3-year enlistment.

4.  The applicant provides:

* A self-authored letter, dated 18 November 2009
* A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* A copy of his high school general educational development (GED) diploma
* A copy of a 15 November 1995 letter of support from a Justice of the Peace
* Three letters of support from two comrades-in-arms, one of whom is a retired command sergeant major

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 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.  This case is being considered using the documents submitted by the applicant.

3.  The applicant is a Hispanic-American born on 15 March 1930.  He enlisted in the Regular Army for 3 years on 5 January 1949.  Following training, he was awarded and served in military occupational specialty (MOS) 4602 (Artilleryman).

4.  The applicant served in Korea for 10 months and 23 days during the Korean War.  According to the letters of support from his former comrades:

* He served with Battery A, 82nd Anti-Aircraft Artillery (AAA) Battalion, 9th RCT, 2nd Infantry Division
* He arrived in Korea on 31 July 1950
* 
He initially supported the Pusan Perimeter along the Naktong River
* When United Nations (UN) forces went on the offensive, he fought all the way to the Yalu River between North Korea and China
* He suffered frostbite
* At Kunu-ri, North Korea in November 1950, he escaped with his life from the massacre in which 5,000 Soldiers were killed, wounded, or captured
* At Chipyong-ni, South Korea in February 1951, he participated in a ferocious battle
* He was returned to the United States in the late spring/early summer of 1951

5.  The applicant's DD Form 214 shows he served from 5 January 1949 to 23 May 1952.  He had 3 years and 1 month of creditable service on his 3-year enlistment, and 109 days of lost time, presumably following his return to the United States from Korea.  He served in Korea for 10 months and 23 days, presumably from 31 July 1950 to 23 June 1951 (accepting 31 July 1950 as his date of arrival in Korea).  He was awarded the Korean Service Medal with 5 bronze service stars and the Presidential Unit Citation.

6.  The facts and circumstances pertaining to the applicant's AWOL and discharge are not available for review.  However, he was discharged under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)).

7.  The applicant points out it has been 58 years since his discharge and he has been a good citizen and a solid family man.  A Justice of the Peace wrote that he was "an honest and honorable person."  He also served 11 years as a constable. In Texas, the constable is a peace officer and the first link in the county's chain of law enforcement.  Along with their deputies, constables have all the enforcement powers of Texas peace officers.  They are sometimes referred to as the executive officer of the justice of the peace courts.  Their duties are to:

* Subpoena witnesses
* Act as bailiffs
* Execute judgments
* Service of process

8.  There is no evidence the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.

9.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  The regulation 
provided, in pertinent part, that members guilty of repeated misconduct were subject to separation.  An undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 provides guidance on characterization of service: 

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his undesirable discharge.

2.  The applicant enlisted in the Army for 3 years in 1949.  He was 18 years old and within 1 year he was thrown into a desperate situation on the Korean peninsula.  Between July 1950 and June 1951, he participated in 5 campaigns; he defended the Pusan Perimeter, broke out during the UN Offensive and marched north to the Yalu River, was pushed back in retreat during the Chinese Communist Intervention, and participated in brutal fighting along the way.

3.  The applicant returned to the United States and before completing his service in excess of his 3-year enlistment, he had a period, or periods, of AWOL totaling 109 days.  This resulted in his eventual discharge with an undesirable discharge for unfitness under Army Regulation 615-368.

4.  By all accounts, the applicant has lived a law-abiding and peaceful life since discharge.  He has been married for 54 years and raised 7 children.  At age 60, he undertook to obtain a GED diploma and he served a period of time as an elected constable in Brooks County, TX.

5.  More importantly, in view of the applicant's extensive wartime experience it would be appropriate as a matter of equity to upgrade his undesirable discharge to a general discharge.

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* voiding his undesirable discharge of 23 May 1952
* issuing to him an appropriate document to show he was discharged with a General Discharge on 23 May 1952



      ___________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)                                         AR20090021240



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021240



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1