IN THE CASE OF:	  

		BOARD DATE:	  1 September 2015 

		DOCKET NUMBER:  AR20150001307 


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, spouse of a deceased former service member (FSM), requests upgrade of the FSM's undesirable (currently referred to as under other than honorable conditions) discharge.

2.  The applicant states, in effect:

* the FSM received this discharge because he was absent without leave (AWOL); he had gone home to see his family
* the FSM had felt there was a crisis at home requiring his attention
* he returned to his unit as soon as the family crisis was resolved
* the applicant feels an honorable discharge should be granted based upon the severity of her family's situation

3.  The applicant provides:

* DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the U.S.), dated 12 May 1955 
* DD Form 214 (Report of Separation from the Armed Forces of the U.S.)
* Honorable Discharge Certificate, date 19 October 1950

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 complete military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the NPRC in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  Available records show the applicant enlisted in the Regular Army on 6 January 1948.  After completing initial training, he was awarded military occupational specialty 4745 (Automatic Rifleman).  

4.  On 19 October 1950, he was honorably discharged to permit immediate reenlistment.  His DD Form 214 shows he:

* completed 2 years, 9 months, and 14 days of net active creditable service, with 2 years, 1 month, and 13 days of foreign service
* attained the rank of corporal at the time of his discharge
* was awarded or authorized the Army of Occupation Medal of Korea
* successfully completed a 4-week Leaders Course

5.  His first period of AWOL is shown as being 9 February 1951 to 10 February 1951.  On 19 February 1951, a summary court-martial (SCM), convened by the command at Camp Stoneman, CA, found him guilty of violating Article 61 (AWOL) of the Articles of War.  His punishment was reduction to the lowest rank and forfeiture of $29.  The findings and sentence were approved on 19 February 1951.

6.  It appears he volunteered for combat service in Korea and was assigned there in or around April 1951.  In August 1951 he was wounded by shrapnel and medically evacuated to the U.S. Army Hospital (USAH), Camp Atterbury, IN for treatment.

7.  His next period of AWOL was from 22 September 1951 to 15 October 1951.  On 23 October 1951, an SCM, convened by the USAH, found him guilty of one specification of violating Article 86 (AWOL) of the Uniform Code of Military Justice (UMCJ).  His punishment was restriction to the limits of Ward 9A, USAH, Camp Atterbury, for 30 days and forfeiture of $40 pay for 1 month.  The findings and sentence were approved on 23 October 1951.

8.  The applicant went AWOL from 2 March 1952 to 23 March 1952, for which he was tried by a special court-martial (SPCM) convened by the command at Fort Benjamin Harrison, IN, on 30 April 1952.  He was found guilty of one specification of violating Article 86, UCMJ, and his punishment consisted of 1 month confinement at hard labor along with the forfeiture of $25 for 2 months.  The findings and sentence were approved on 5 May 1952.

9.  He was AWOL again for the period 6 August 1952 until 25 August 1952.  He was charged with one specification of violating Article 86, UCMJ and subsequently tried by an SPCM convened by the command at Fort Benjamin Harrison.  He was convicted of the charge on 18 September 1952 and his punishment consisted of confinement at hard labor for 57 days and forfeiture of $25 per month for 4 months.  The findings and sentence were approved 23 September 1952.

10.  His final period of AWOL occurred from 2 January 1953 to 5 February 1953. He was tried and convicted by an SPCM on 3 March 1953 of one specification of violating Article 86, UCMJ.  The court was convened by the command at Fort Benjamin Harrison.  His sentence was confinement at hard labor for 102 days and forfeiture of $39 per month for a like period.  The findings and sentence were approved on 10 March 1953.

11.  On an unknown date, his command initiated separation action under the provisions of Army Regulation 615-369 (Enlisted Men - Discharge - Inaptitude or Unsuitability (Inaptness, Lack of Required Degree of Adaptability, or Enuresis).  A board of officers convened on or about 14 November 1952.  The board results were forwarded to Fifth Army Headquarters but were returned without action on the basis that there was no clear indication the FSM had been advised of his right to counsel, nor did it appear he was given adequate notice of the hearing.  His unit's response included a statement the FSM was not available at that time because he was AWOL.

12.  On 28 June 1953, the FSM's unit recommended a board of officers be convened to determine whether the FSM should be discharged under the provisions of Army Regulation 615-368 (Enlisted Personnel - Discharge - Unfitness).  

	a.  The basis for this recommendation was the FSM's habitual periods of AWOL, his uncooperativeness, and his attitude.  
	b.  A certificate of psychiatrist was included with the recommendation.  The certificate, dated 12 June 1953, issued by the Psychiatry and Neurology Service, USAH, Camp Atterbury, essentially stated:

* the FSM's diagnosis was anti-social personality manifested by immaturity, impulsive behavior, lack of adequate standards of behavior, and inability to learn from experience
* the FSM had been examined on 25 February 1953 in the Outpatient Department of the Psychiatric Service; he was recommended for separation at that time
* he was being referred again to provide a more current evaluation
* the FSM's history included the following:

* he was 2 days late returning from leave in February 1951 and was tried by an SCM
* in September and October 1951 he went AWOL for 24 days from the USAH, Camp Atterbury; he was married during this period of AWOL
* he was later picked up by the military police, tried by a court-martial and restricted to the ward
* he was again AWOL for 1 day on 13 January 1952, then for 22 days in March 1952, saying his wife was ill and he wanted to be with her
* he was again picked up by the military police and was tried by an SPCM
* in August 1952 he was AWOL for 19 days; his reason for going AWOL was he was worried about his wife because she was pregnant and had previously miscarried
* he was picked up by the military police and subsequently tried and sentenced by an SPCM
* the only reason given by the FSM for his periods of AWOL was that he wanted to be with his wife
* the FSM had been seen previously in the Psychiatric Service of USAH, Camp Atterbury because of his history of going AWOL as well as a history of head injuries, complaints of headaches and dizziness, all occurring after an automobile accident in October 1950
* the FSM enlisted in the Army in January 1948 and served in Korea with the occupation troops as a rifleman for 13 months; he was then assigned to Hawaii for another 13 months
* he returned to the U.S. and was stationed at Fort Ord, CA as cadre, training draftees; he did not like this work and volunteered for combat service in Korea
* while serving in combat in Korea he was wounded in the leg by shrapnel; he was sent to USAH, Camp Atterbury for treatment and was hospitalized from August 1951 until June 1952
* he was transferred to the 5027th Ammunition Storage Unit, Fort Benjamin Harrison

* Under the heading of Mental Status, the FSM was described as displaying little emotion or regret of his actions, and no desire to change in the future; he presented no overt delusions or hallucinations and no overt psychotic manifestations and, while sensorium appeared intact, insight was absent

13.  A DA Form 37 (Report of Proceedings of Board of Officers), dated 2 July 1953, records the results of the FSM's board of officers convened to determine whether the FSM should be discharged under the provisions of Army Regulation 615-368.  

	a.  The FSM waived his right to counsel and was present during all open sessions of the board.  He was afforded full opportunity to cross-examine adverse witnesses, present evidence in his own behalf, to testify in person or to submit a written statement, and to submit a brief.

	b.  The board found sufficient evidence to support discharge from the service because of unfitness.  The issuance of an Undesirable Discharge Certificate was recommended.

	c.  On 11 August 1953, the separation approval authority approved the board's recommendation and directed the FSM be issued an Undesirable Discharge Certificate.

14.  On 5 October 1953, the FSM was discharged accordingly.  His DD Form 214 shows he completed 1 year, 8 months, and 29 days of net active creditable service with 444 days of lost time.  The entry for foreign and/or sea service shows 4 months and 15 days.  His DD Form 214 also shows:

* he was awarded or authorized the Korean Service Medal with three bronze service stars, National Defense Service Medal, Combat Infantryman Badge, Meritorious Unit Commendation, Purple Heart, and Presidential Unit Citation
* his character of service is shown as undesirable with the reason and authority listed as Army Regulation 615-368, unfitness, habits rendering retention in service undesirable

15.  On 26 March 1981, the FSM submitted an application to the Army Discharge Review Board (ADRB).  In his application, the FSM stated he believed he should have received a medical discharge because, when he was released from USAH, Camp Atterbury, he was only to be assigned light duty.  On 10 March 1982, the FSM was notified the ADRB had denied his application.

16.  The applicant provides a DD Form 293 which is dated 12 May 1955.  There is no record of what action may have been taken by the ADRB and the applicant provides no additional information in this regard.

17.  Army Regulation 615-368, in effect at the time, prescribes procedures of the separation of enlisted Soldiers on the basis of unfitness.  It states, in pertinent part, an individual will be considered for elimination under this regulation when he has already demonstrated that he is totally unfit for further retention in the military service and his rehabilitation is considered impossible after the failure of repeated attempts.  The enlisted Soldier's commanding officer will report the facts to the next higher commander and recommend that the individual be required to appear before a board of officers.  The bases for elimination under this regulation include:

* evidence of habits or traits of character manifested by anti-social or amoral trend, criminalism, or misconduct
* unclean habits
* repeatedly committed petty offenses not warranting a trial by court-martial
* habitual shirker

18.  Army Regulation 615-360 (Enlisted Personnel - Discharge - General Provisions), in effect at the time, prescribes policies and general procedures of enlisted separations.  

	a.  Paragraph 8 (Honorable Discharge) details the requirements for the issuance of an honorable discharge.  Included in the criteria are:

* character ratings of "excellent," or at least "very good"
* not convicted by a general court-martial
* not convicted more than once by an SPCM

	b.  Paragraph 9 (General Discharge) describes the requirement for being given a general discharge under honorable conditions.  Those individuals whose service does not qualify for an honorable discharge will be given a general discharge, except for those identified as substandard.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of the undesirable discharge of her deceased husband, an FSM.  

2.  The FSM was recommended for separation after repeatedly going AWOL and accumulating 444 days of lost time.  He appeared before a board of officers and had the opportunity to question all adverse witnesses as well as to present matters in his own behalf.  Based upon the preponderance of evidence, the board recommended separation and this recommendation was approved by the separation authority.

3.  The evidence of record clearly shows his separation was based upon a pattern of misconduct and was processed in accordance with the applicable regulations that were in effect at the time.  All requirements of law and regulation were met, and the rights of the FSM were fully protected throughout the separation process.

4.  Based upon his personal conduct, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct therefore rendered his service as unsatisfactory.  Accordingly, there is an insufficient basis upon which to grant the 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)                                         AR20150001307





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ABCMR Record of Proceedings (cont)                                         AR20150001307



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