IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100027641 


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 dishonorable discharge to honorable and award of the Purple Heart.

2.  The applicant states that he was suffering from post traumatic stress disorder from the Korean War.  This was made worse by the fact that he was the only "Yankee" in a unit filled with Southerners who harassed him constantly.  Had he not left on absence without leave (AWOL) someone would have gotten hurt because he had reached the breaking point.  He had been wounded in combat with the enemy, although he had never been awarded the Purple Heart.  He was awarded two bronze stars.  He tried to get his records but was informed that everything had been burned.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from the Armed Forces of the United States) and of a Hospital Admission Data Card record, commonly called an SGO [Surgeon General's Office] file.  

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 for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, sufficient information is available in the court-martial records to render a full and impartial review.

3.  The applicant enlisted on 17 January 1951, completed training as an infantry mortar-man, and served in Korea. 

4.  He returned to the United States and was AWOL from 10 August 1953 from Camp Drum, Watertown, NY, and was apprehended on 5 October 1954 and charged with desertion.

5.  A DD Form 578 (Offender or Incident Report) shows the applicant was apprehended by Canadian immigration officials as an undesirable resident and handed over to U.S. officials.

6.  On 4 November 1954, the applicant pled guilty before a general court-martial to violation of Article 85 the Uniform Code of Military Justice by desertion from 10 August 1953 to 5 October 1954 terminated by apprehension.  He was sentenced to confinement for 3 years, total forfeitures, and a dishonorable discharge.

7.  The Staff Judge Advocate's (SJA) review of the case noted:

   a.  the applicant had served in Korea from October 1951 to July 1952;
   
   b.  he had been wounded in the leg during an attack on a hill and had been hospitalized briefly and then returned to combat.  
   
   c.  his authorized awards included the Purple Heart, Combat Infantryman Badge, Korean Service Medal, United Nations Service Medal, National Defense Service Medal, and the Republic of Korea Presidential Unit Citation;
   


   d.  after his return to the United States the applicant had been convicted by two special court-martials – one for AWOL from 13 December 1952 to 15 January 1953 and one for wrongful appropriation of another Soldier's radio; and

	e.  in a post-trial interview the applicant expressed a desire to continue military service. 

8.  The SJA recommended the sentence be modified by reducing the confinement to 1 year and 6 months and the General Court-Martial Convening Authority approved confinement for 1 year and 6 months, total forfeitures, and a dishonorable discharge.

9.  The Board of Review approved the findings and sentence and the applicant declined to petition the Court of Military Appeals.   

10.  Article 71(c) of the Uniform Code of Military Justice having been complied with, the dishonorable discharge was ordered executed and the applicant was discharged on 14 January 1955.

11.  His DD Form 214 lists his authorized awards as the Korean Service Medal and the "United Nations Medal w/2 Bronze Stars."

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

13.  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.  

14.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence 


imposed in the court-martial process and then only 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.

15.  Army Regulation 600-8-22 (Military Awards) shows during the period October 1951 through July 1952 Korean War campaign periods included the  United Nations  Summer-Fall Offensive from 9 July – 27 November 1951, Second Korean Winter from 28 November 1951 – 30 April 1952, and Korean 
Summer-Fall from 1952 from 1 May – 30 November 1952.  There is no award named the "United Nations Medal" for the Korean War era and no service stars for the United Nations Service Medal.  Bronze service stars are worn on the Korean Service Medal.

16.  Army Regulation 600-8-22 states the Republic of Korea War Service Medal is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953.  The service must have been performed, in part, while on permanent assignment or on temporary duty for 30 consecutive or 60 non-consecutive days within the territorial limits of Korea or the waters immediately adjacent thereto.

DISCUSSION AND CONCLUSIONS:

1.  The statutory authority under which this Board was created precludes any action by this Board which would disturb the finality of a court-martial conviction.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's combat service, including the fact that he was wounded, is noted.  However, these factors do not outweigh the seriousness of the offense for which he received the punitive discharge, especially when viewed in light of the two previous court-martial convictions. 

4.  Nevertheless, his DD Form 214 should accurately reflect his service, including his awards.  Therefore, it should be corrected to show that his awards consist of the Purple Heart, National Defense Service Medal, Korean Service Medal with three bronze service stars, United Nations Service Medal, Republic of Korea Presidential Unit Citation, Republic of Korea War Service Medal, and the Combat Infantryman Badge.



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 changing his DD Form 214 as follows:

	a.  deleting the awards shown in item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized); and 

	issuing a DD Form 215 (Correction to DD Form 214) showing that his authorized awards are the Purple Heart, National Defense Service Medal, Korean Service Medal with three bronze service stars, United Nations Service Medal, Republic of Korea Presidential Unit Citation, Republic of Korea War Service Medal, and the Combat Infantryman Badge.

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 the discharge.  




      _______ _  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)                                         AR20100027641





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ABCMR Record of Proceedings (cont)                                         AR20100027641



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