IN THE CASE OF:	  

		BOARD DATE:  19 September 2013

		DOCKET NUMBER:  AR20130002193 


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 that his undesirable discharge be upgraded. 

2.  The applicant states the Department of Veterans Affairs (VA) recently diagnosed him with post-traumatic stress disorder (PTSD) and at the time of his misconduct, he suffered from the illness.

3.  The applicant provides:

* DD Form 214 (Report of Separation from the Armed Forces of the United States)
* VA Progress Notes, dated 17 January 2013
* two WD AGO Forms 0707 (Record of Award of Purple Heart), dated 1 July 1953 and 16 July 1953
* AGO Form 0365 (Battle Casualty Report)

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.  A portion of his military records were lost or destroyed in that fire.  This case is being considered using the documents submitted by the applicant and the remaining documents found in his military records.

3.  The applicant enlisted in the Regular Army on 16 July 1952 for a 3-year term of service.  He was awarded military occupational specialty (MOS) 
1745 (Infantryman).

4.  The applicant served in Korea for 1 year, 2 months, and 26 days.

5.  On 25 June 1953 and 9 July 1953, the applicant received wounds as a result of action with enemy forces during the Korean War.

6.  The applicant's record reveals a disciplinary history as follows:

* summary court-martial – convicted of being AWOL during the period 
30 April 1954 through 3 May 1954
* AWOL - 6 June 1954
* summary court-martial – convicted of not being at his appointed place of duty on 21 July 1954
* AWOL - 6 September 1954
* special court-martial – convicted of being AWOL during the period
23 October 1954 through 28 October 1954

7.  A DA Form 37 (Report of Proceedings of Board of Officers), dated 
10 February 1955, shows a board of officers convened on 8 February 1955 and recommended separating the applicant under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)).  The reason for the recommendation for discharge was the applicant's behavior, activities, or associations which tend to show the applicant was not reliable or trustworthy.  The approving authority approved the recommendation on 10 February 1955.

8.  On 23 February 1955, he was discharged in pay grade E-1.  He received an undesirable discharge under the provisions of Army Regulation 615-368 for unfitness after completing 2 years, 5 months, and 2 days of active service with 
67 days time lost due to AWOL and confinement.

9.  The applicant's DD Form 214 shows he was awarded the following:

* National Defense Service Medal
* Korean Service Medal with two bronze service stars
* United Nations Service Medal
* Purple Heart (1st Oak Leaf Cluster)
* Combat Infantryman Badge

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 13 February 1957, the ADRB reviewed and denied the applicant's request for upgrade.  

11.  The applicant provided VA Progress Notes, dated 17 January 2013, which show he was examined by a psychiatrist.  The psychiatrist indicated that he did not meet the full Diagnostic and Statistical Manual (DSM) criteria for PTSD at the time. 

12.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation 
provided for the discharge of individuals who had demonstrated their unfitness 
by giving evidence of undesirable habits of character manifested by misconduct.
At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  Army Regulation 635-200, 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he suffered from PTSD at the time of his offenses.  There is no evidence in the applicant's military service records and he has not provided evidence that shows he suffered from PTSD or that any mental disorder contributed to his misconduct.  

2.  The applicant's records show that he was convicted by two summary courts-martial and one special court-martial, and had four instances of AWOL.  He had completed 2 years, 5 months, and 2 days of a 3-year term of service with 
67 days of lost time due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general under honorable conditions discharge.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with the applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the applicant’s discharge was proper and equitable.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130002193





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130002193



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1