BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120006132 


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:

* the dishonorable character of service her deceased husband, a former service member (FSM), received be upgraded
* the FSM's Bronze Star Medal be mailed to her

2.  The applicant states:

* the FSM served his country with dignity and respect
* he was given a dishonorable discharge because he was wounded, he still had shrapnel in his body, and he refused to go back to war
* the Bronze Star Medal he earned should be mailed to her

3.  The applicant provides:

* The FSM's Certification of Military Service
* The FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States)
* Marriage Certificate

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 FSM's complete 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 his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The FSM's DD Form 214 shows he had prior service.  He reenlisted in the Regular Army on 28 September 1949 and entered active duty on that date.  

4.  This form further shows he held military occupational specialty 4745 (Light Weapons Infantryman) at the time of separation and his most significant duty assignment (i.e., last duty assignment) was with Company C, 24th Infantry Regiment.  He completed 11 months and 11 days of foreign service during this period. 

5.  General Court-Martial Order Number 138, issued by Headquarters, 25th Infantry Division, dated 26 December 1950, sentenced him to a dishonorable discharge.  

6.  According to the Federal Bureau of Investigation, Criminal Justice Information Services Division, the FSM was convicted of misbehaving before the enemy.  He was sentenced to confinement for 5 years on 19 September 1950. 

7.  Article 99 of the Uniform Code of Military Justice covers misbehavior before the enemy.  It states any member of the armed forces who before or in the presence of the enemy: 

* runs away
* shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend
* through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property
* casts away his arms or ammunition
* is guilty of cowardly conduct
* quits his place of duty to plunder or pillage
* causes false alarms in any command, unit, or place under control of the armed forces
* willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy
* does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle; shall be punished by death or such other punishment as a court-martial may direct

8.  The FSM was discharged on 26 December 1950 pursuant to a sentence by a general court-martial with a dishonorable character of service and in accordance with Army Regulation 614-364 (Enlisted Personnel – Dishonorable and Bad Conduct Discharge).  He completed 11 months and 8 days of active service during this period and he had 112 days of lost time under the Articles of War.  This form also shows in:

	a.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the Army of Occupation Medal with Japan Clasp, Bronze Star Medal, and Combat Infantryman Badge.

	b.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) the entry "None."

9.  Army Regulation 615-364, in effect at the time, set forth the basic authority for the separation of enlisted personnel with dishonorable and bad conduct discharges.  It stated that an enlisted person 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.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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.

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.  

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM was convicted by a general court-martial of misbehavior before the enemy.  The Court sentenced him to a prison sentence and a dishonorable discharge.  The trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge appear to have been effected in accordance with applicable laws and regulations and the discharge appears to appropriately characterize the misconduct for which he was convicted.

2.  The applicant’s claim that the FSM refused to go back to war because he was wounded was considered.  However, she provides nothing and there is nothing in the available records that shows he was wounded in action or refused to go to war because he was wounded. 

3.  The FSM’s record of service included a general court-martial conviction and 112 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of a general discharge or an honorable discharge is not warranted in this case.

4.  With respect to the Bronze Star Medal, this award is already listed on the FSM's DD Form 214.  Requests for the issuance or replacement of military service medals, decorations, awards, badges, and corresponding accouterments should be directed to the specific branch of the military in which the veteran served.  For Army personnel, the National Personnel Records Center will verify the awards to which a veteran is entitled and forward the request with the verification to the appropriate service department for issuance of the medals.  Written requests with appropriate supporting evidence may be addressed to the National Personnel Records Center, 1 Archives Drive, St. Louis, MO  63138.  Once verified, the replacement medals and devices are shipped to the veteran by the U.S. Army Tank Automotive and Armaments Command, Clothing and Heraldry (PSID), Post Office Box 57997, Philadelphia, PA  19111.
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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _ 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)                                         AR20120006132



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ABCMR Record of Proceedings (cont)                                         AR20120006132



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