IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100018160


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, the spouse of a deceased former service member (FSM), requests reconsideration of her husband's previous request for an upgrade of his bad conduct discharge (BCD) and posthumous award of the Purple Heart through her Congressional representative.

2.  The applicant states her husband received the Bronze Star Medal for service in Korea and a meritorious citation from the commander of the 45th Infantry Division.  She further states these documents show his outstanding performance of duty and show he was an inspiration to his fellow comrades and a great credit to the military.

3.  The applicant provides:

* Certificate of Death
* Bronze Star Medal Certificate
* Bronze Star Medal Citation
* newspaper article
* DD Form 214
* five third-party statements
* photocopies of three pictures of various men receiving awards for service in Korea


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080016060 on 10 March 2009.

2.  The applicant's Congressional representative requests that her request for discharge upgrade and award of the Purple Heart be given every consideration based on the introduction of new evidence, specifically the Bronze Star Medal Certificate, the Bronze Star Medal Citation, and numerous third-party statements that expound on the FSM's strength of character and meritorious service in Korea.

3.  The FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he enlisted in the Regular Army on 15 August 1951 for a period of 3 years and served until 23 December 1954.  His service was terminated by a bad conduct discharge resulting from a sentence by a general court-martial.  The rank/pay grade he held at the time of discharge was 
private/E-1.

4.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the FSM's DD Form 214 is void of an entry for either the Purple Heart or the Bronze Star Medal.

5.  Records show the FSM served in the Republic of Korea from November 1952 to September 1953.

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

7.  The FSM's record shows he was absent without leave (AWOL) on five separate occasions:

* from 29 December 1951 to 12 February 1952 (45 days), for which he was tried by special court-martial on 5 March 1952
* from 17 March 1952 to 7 May 1952 (51 days), for which he was tried by special court-martial on 16 June 1952
* from 7 January 1954 to 29 January 1954 (22 days)
* from 8 February 1954 to 21 February 1954 (13 days), for which he was tried by special court-martial on 9 March 1954
* from 2 June 1954 to 25 September 1954 (115 days), for which he was tried by general court-martial

8.  Special Orders Number 280, dated 15 October 1954, show the FSM was returned to military control in Detroit, MI, on or about 25 September 1954, then confined at Fort Riley, KS, and assigned to the Headquarters Detachment, 5021st Area Special Unit, based at Fort Riley.

9.  On 26 October 1954, the FSM was tried before a general court-martial convened at Headquarters, Fort Riley.  He 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 from 2 June 1954 to 25 September 1954.  He pled guilty to this specification and charge and was subsequently found guilty.  The court sentenced him to confinement at hard labor for 6 months, forfeiture of all pay and allowances, and a bad conduct discharge (BCD).

10.  On 2 November 1954, the Fort Riley Staff Judge Advocate (SJA) examined and concurred with the findings of the general court-martial.  The SJA review shows the FSM had three previous convictions and that his character of service, to date, had been unsatisfactory.

11.  On 3 November 1954, the convening authority approved his sentence and, except for the BCD, ordered it executed.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for review.

12.  On 24 November 1954, a U.S. Army Board of Review affirmed the findings and sentence.

13.  General Court-Martial Order Number 176, Headquarters, Fort Riley, dated 13 December 1954, affirmed the sentence and directed its execution.

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

15.  The applicant provides:

	a.  original Bronze Star Medal Certificate and Citation presented to Corporal O____ D. C____, RA XXXXXX42, for meritorious achievement in ground operations against the enemy in Korea between 5 May 1953 and 27 July 1953;

	b.  a newspaper caption, showing a photograph of three Soldiers receiving awards for their service in Korea.  The photo caption identifies the FSM as receiving the Bronze Star Medal; and

	c.  five separate third-party statements from the FSM's widow, sister, daughter, and nephew attesting to the FSM's strength of character and former wartime injuries.

16.  Army Regulation 600-8-22 (Military Awards) provides 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.

17.  Army Regulation 600-8-22 provides 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.

18.  Army Regulation 615-364, in effect at the time, set forth the basic authority for the separation of enlisted personnel for dishonorable and bad conduct.  Paragraph 1b provided that individuals would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  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.

19.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

20.  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.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of her deceased husband's discharge and posthumous award of the Purple Heart was carefully considered; however, there is insufficient evidence to support this request.

2.  Based on his record of indiscipline, including four convictions by court-martial and five periods of AWOL, the FSM's total service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory and precludes relief in the form of a discharge upgrade.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  His discharge accurately reflects his overall record of service.

4.  Careful consideration has been given to the applicant's contentions.  However, the applicant failed to show through the evidence submitted or the available evidence of record that the FSM's discharge was unjust and should be upgraded.  Based on the foregoing, relief is not warranted.

5.  The applicant's contention that the FSM should be posthumously awarded the Purple Heart has been noted; however, the available record is void of any evidence to show that he was wounded in action.  Based on the foregoing, relief is not warranted.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20080016060, dated 10 March 2009.



      __________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)                                         AR20100015378



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ABCMR Record of Proceedings (cont)                                         AR20100018160



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