IN THE CASE OF:	  

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130009184 


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 characterization of service of her deceased husband, a former service member (FSM), be upgraded from an undesirable discharge to an honorable discharge. 

2.  The applicant states her deceased husband was wounded in combat in Korea.  He was awarded the Combat Infantryman Badge and the Purple Heart. She believes he may have suffered from post-traumatic stress disorder (PTSD) that caused him to be in an absent without leave (AWOL) status.  The discharge upgrade is needed so that she may qualify for benefits. 

3.  The applicant provides:

* Letter from the Department of Veterans Affairs
* Certification of Military Service
* DD Form 214 (Report of Separation from the Armed Forces of the United States)
* Battle Casualty Report
* Orders awarding him the Purple Heart
* Certificate of Birth
* Death certificate
* Certificate of marriage


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 records show he enlisted in the Regular Army on 3 October 1951 and he held military occupational specialty 1745 (Light Weapons Infantryman). 

3.  He completed 1 year, 4 months, and 5 days of foreign service and he was awarded or authorized the Purple Heart, Combat Infantryman Badge, Korean Service Medal with one bronze service star, United Nations Service Medal, and National Defense Service Medal. 

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on/for:

* 22 October 1953, disobeying a lawful order
* 7 November 1953, being AWOL
* 12 January 1954, failure to repair
* 14 January 1954, failure to comply with post regulation 
* 16 June 1954, traffic violation
* 23 July 1954, failure to repair

5.  His records also show he was convicted by courts-martial as follows:  

* 16 February 1954, summary court-martial for one specification of being AWOL from 8 to 13 February 1954; he was sentenced to a forfeiture of pay and a reduction in grade
* 21 May 1954, special court-martial for one specification of being AWOL from 9 April to 7 May 1954; he was sentenced to a forfeiture of pay
* 9 June 1954, summary court-martial for twice failing to go at the time prescribed to his appointed place of duty; he was sentenced to a forfeiture of pay 
* 24 September 1954, special court-martial for one specification of being AWOL from 1 August to 10 September 1954; he was sentenced to a forfeiture of pay and confinement at hard labor

6.  On 14 November 1954, his immediate commander requested a board of officers be convened under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)) for the purpose of determining the applicant's fitness for retention.  The immediate commander remarked that the FSM had been a severe disciplinary problem as evidenced by his record.  Accordingly, he was notified to appear before a board of officers to determine whether he should be discharged from the Army prior to the expiration of his term of service.  He acknowledged receipt.

7.  On 15 November 1954, a board of officers convened at Headquarters, 69th Infantry Division, Fort Dix, NJ, for the purpose of determining his fitness for retention.  The board found him unfit for further retention in the military by reason of misconduct as evidenced by his excessive time lost and trial by courts-martial which rendered his retention in the service undesirable, and recommended his discharge under the provisions of Army Regulation 615-368 for unfitness with the issuance of an Undesirable Discharge Certificate.

8.  On an unknown date in November 1954, the convening authority approved the board of officers' findings and recommendations and ordered the FSM discharged by reason of unfitness with an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 23 November 1954. 

9.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 615-368 with an undesirable discharge.  This form also shows he completed 2 years, 9 months, and 23 days of creditable active service and he had 118 days of lost time.

10.  On 3 February 1955, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

11.  The applicant provides:

	a.  A letter, dated 12 October 2011, from the VA regarding Dependency and Indemnity Compensation. 

	b.  A Battle Casualty Report, dated 14 July 1952, showing the FSM was wounded in action in Korea on 10 July 1952. 

	c.  Orders awarding the FSM the Purple Heart. 

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 habits and traits of character manifested by misconduct.  Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 615-368 also stated that a board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service.  The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability under Army Regulation 615-369 (Enlisted Personnel - Discharge - Inaptitude or Unsuitability) without referral to another board might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted.  As examples, such circumstances would apply where the cause of unfitness had been minor relative to the length of efficient service or where there had been a definite effort at self control or where an individual had distinguished himself by an act of heroism during his current period of service, which in itself reflected great credit on the individual and the military service.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the separation of enlisted personnel.  Paragraph 3-7a, in pertinent part, states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM's discharge should be upgraded was carefully considered.

2.  The evidence of record shows the FSM had an extensive history of misconduct as evidenced by his four instances of court-martial convictions, habitual AWOL, extensive history of NJP, and undesirable military traits and habits.  Accordingly, his chain of command recommended a board of officers be convened under applicable regulations for the purpose of determining his fitness for retention in the Army.  The board found him unfit for retention and recommended his discharge with an Undesirable Discharge Certificate.  The convening authority appears to have approved the board's findings and recommendation.

3.  Nothing in the available records shows he suffered from or was diagnosed with PTSD or any other mental condition or that his extensive history of misconduct was caused by this condition or any other physical/behavioral health condition. 

4.  His administrative separation was accomplished in compliance with applicable regulations at the time with no procedural errors which would tend to jeopardize his rights.  The separation authority appropriately directed issuance of an undesirable discharge based on his overall record during the period under review.  There is neither an error nor an injustice.  Therefore, the FSM is not entitled to an upgrade of his discharge.

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 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)                                         AR20130009184



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ABCMR Record of Proceedings (cont)                                         AR20130009184



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