PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:               5 August 1998               
	DOCKET NUMBER:      AC98-07697

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:

	Ms.	June Hajjar		Chairperson	
	Mr.	John N. Sloane		Member	
	Mr.	James M. Alward		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr.	Joseph A. Adriance 		Analyst	

	The applicant and counsel if any, did not appear before the Board.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

3.  The applicant states, in effect, that his overall record of service was honorable; that he had served his country in combat in both World War II and Korea; that when he was assigned back to Germany he had a hard time adjusting because he had fought there and his brother had been killed there during World War II; that his mother was in poor health and he had requested a compassionate reassignment which was denied; that he had served in combat and attained the rank of sergeant first class; that he requested civilian counsel which was denied and his military counsel showed up one hour before his court-martial; that he was not allowed to present any witnesses at the court-martial and was not allowed to take the stand in his own behalf; and finally that his discharge and his being denied VA medical benefits are injustices given his combat and overall record of service.

4.  The applicant’s military records show that he initially entered the Tennessee National Guard on 15 May 1939 and served honorably until entering the Army of the United States on 16 September 1940.  He served honorably during World War II and was separated for demobilization on 16 September 1945.  He again joined the Tennessee National Guard on 8 April 1947 where he served until entering the Regular Army on 24 February 1950.  He reenlisted for the period of service under review on 2 October 1953 and served until his discharge on 
24 July 1957.

5.  The applicant’s record documents that he received the Bronze Star Medal for Valor on 26 November 1950; that he had been awarded the Combat Infantryman’s Badge (CIB) for World War II action on 7 February 1945; and he received a second CIB for action in Korea on 10 August 1950.  The applicant also participated in four campaigns of World War II which included:  Northern France; Ardennes-Alsace; Rhineland; and Central Europe.  He also participated in five campaigns of the Korean conflict which included:  UN Defensive; UN Offensive; CCF Intervention; First UN Counteroffensive; and CCF Spring Offensive.  The applicant’s awards include the Distinguished Unit Emblem; the Good Conduct Medal; the American Defense Service Medal; the European-African-Middle Eastern Campaign Medal; the World War II Victory Medal; the Army of Occupation Medal/with Germany & Japan clasps; the National Defense Service Medal; and the United Nations Service Medal.  The applicant’s record also documents that the highest rank he held on active duty was sergeant first class which he attained on 18 August 1954.

6.  The evidence of record indicates that the applicant applied for a compassionate reassignment, citing his mother’s health, and the personal problems he was experiencing with alcohol, because he was forced to serve in Germany, where he had fought and his brother had died during World War II.

7.  The record contains a second endorsement from the applicant’s unit commander, dated 5 June 1957, in which he recommends disapproval of the applicant’s request for compassionate reassignment.  He based his recommendation on the fact that the applicant’s brothers and sisters live in the vicinity of their mother; and that there was no evidence that the applicant would be a detriment to German-American relations; and that in his opinion the applicant was of little value to the Army.  The unit commander, in the same endorsement, also commented that the applicant had been recommended for elimination from the service, under the provisions of AR 635-208; however, that the 208 board had met and recommended retention; in addition, they also recommended that the applicant receive a rehabilitative reassignment to another company within the regiment for reevaluation.  

8.  On 6 June 1957 the applicant’s unit commander requested that the applicant appear before a board of officer’s, convened under the provisions of AR 635-208, to determine if the applicant should be separated prior to his expiration of term of service.  The commander cited the applicant’s drinking problem and his habitual AWOL related disciplinary infractions as his reasons for the action.  In support of his recommendation the commander submitted the applicant’s disciplinary record since his arrival in the unit on 10 August 1956 which included convictions by 2 summary and 1 special court-martial, for minor  AWOL related offenses totaling 4 days, and the applicant’s acceptance of unit punishment on three occasions, two of which were for public drunkenness, and the last for missing bed check.  The unit commander concluded his recommendation with the comment that the applicant being in the category commonly referred to as an “Old Soldier” poses morale problems for the younger impressionable soldiers.

9.  On 17 June 1957 a board of officer’s convened and considered the case for the applicant’s elimination prior to ETS, under the provisions of AR 635-208.  The board’s findings concluded the applicant was unsuitable for further service.  Their findings were that the applicant was unreliable and not trustworthy based on his record of courts-martial and company punishment in the 10 months he was assigned to his current unit.  The board, based on their findings, also recommended that the applicant be issued a UD.  On 2 July 1957 the separation authority approved the findings of the board and directed the applicant be discharged with a UD.  Accordingly, on 24 July 1957 the applicant was discharged after completing 3 years, 9 months, 19 days of his current enlistment, 

and a total of 15 years, 8 months, and 14 days of active military service and accruing a mere 4 days of time lost due to AWOL.

10.  On 12 February 1982 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge.  The ADRB report contained a minority opinion which concluded that based on the applicant’s overall record of service, for the period under review, his service should be characterized as at least under honorable conditions, with issue of a general discharge.  In support of this conclusion the minority report offered the following facts:  that all the disciplinary infractions occurred over the last 10 months; that the applicant had already completed 3 years of the enlistment under review prior to committing the infractions; that the infractions appeared to be alcohol related, with no acts of violence or destruction of property; and that he had only accrued a total of
4 days of AWOL during the enlistment under review.

11.  Army Regulation 635-208, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel service who were determined to unfit for further military service. 

CONCLUSIONS:

1.  The Board concurs with the ADRB in that the applicant's administrative separation was accomplished in compliance with applicable regulations.  However, the Board also agreed with the minority opinion of the ADRB which concluded the characterization of service received by the applicant was too harsh given his overall record of service.

2.  The Board noted that the applicant’s case had been evaluated by an administrative separation board, which had been convened based on the same facts and circumstances, which ultimately led to a second separation board’s recommendation that the applicant be discharged.  The first board recommended that the applicant be retained, and that he be reassigned to another company in the regiment for revaluation.  There is no evidence of record to show that the findings and recommendations of the first board were ever acted upon.  It is clear that the applicant was never reassigned to another unit or afforded the opportunity for rehabilitation or revaluation, prior to undergoing evaluation by the second administrative separation board, which recommended his discharge.  The Board concluded that while there is no evidence of impropriety, it would have been fair and appropriate to honor the recommendation of the first board, prior to convening the second board.  The applicant, based on his overall record of service, including combat service in World War II and Korea, should have at least been afforded the opportunity for rehabilitation prior to undergoing the second board action.

3.  While the Board does not condone the applicant’s misconduct, consideration was given to the fact that the infractions were minor, strictly military in nature, and not otherwise a serious offense against society .  Additionally, by all indications they were an aberration of the applicant’s normal good conduct which were caused by personal problems and the use of alcohol.  Although the applicant did commit the offenses for which he was discharged, the Board noted that all three of the applicant’s convictions by court-martial were for violations of Article 86, and the combined AWOL time included in all the charges, for all three trials, only added up to a total of 4 days.  

4.  The Board noted the applicant’s contentions, carefully reviewed the evidence of record, and determined the following factors were sufficiently mitigating to warrant an upgrade to the applicant’s discharge:  the overall quality of the applicant’s service to his nation; his combat service in World War II; his combat service in Korea; and the fact that he had completed over 3 years of the period of service under review prior to the disciplinary infractions occurring.  Therefore, the Board determined, in view of the honorable nature of the preponderance of the applicant’s service, that the applicant’s discharge should be upgraded to fully honorable.  To do otherwise would ignore his wartime contributions to his country, work an injustice upon the applicant and his heirs by permanently attaching a stigma to his total military service, and possibly denying them the right to certain VA benefits when the overwhelming majority of service was honorable.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the individual concerned was separated from active duty on 24 July 1957 with an honorable discharge.

2.  That Department of the Army issue the individual concerned an Honorable Discharge Certificate from the Regular Army, dated 24 July 1957, in lieu of the UD of the same date now held by him.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON