PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           3 November 1999                   
	DOCKET NUMBER:   AR1999028288

	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.  

	Mr. Loren G. Harrell		Director	
	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Stanley Kelley		Member	

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

	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 discharge under other than honorable conditions be upgraded to honorable or general, under honorable conditions.

3.  The applicant states, in effect, that he went AWOL on several occasions because his mother was ill; and that she had no one to rely on to assist her except for the applicant.  

4.  The applicant’s military records show that he enlisted on 28 March 1951 in the Regular Army (RA) for a period of 3 years unassigned.  The record also indicates the applicant achieved an Armed Forces Qualification Test (AFQT) score of 13, (i.e., Mental Category of IV/slow learner).  He was assigned to the 8th Training Co, 2d Engineer Training Battalion, Fort Belvoir, Virginia for basic combat training (BCT).  

5.  On 25 June 1951 he went AWOL and remained absent until 1 August 1951.    He was in confinement from 10-31 August 1951.

6.  On 29 August 1951 he was convicted by a special court-martial (SPCM) for violation of the UCMJ, Article 86.  He was sentenced to forfeiture of $50 per month for 3 months.    

7.  In August 951 he was reassigned to Fort Hood, Texas, for training in military occupational specialty (MOS) 3795, tank crewman.   

8.  On 12 September 1951 he went AWOL and remained absent until 25 November 1951.  He was in confinement from 25 November 1951 to 20 December 1951. 

9.  On 6 December 1951 he was convicted by SPCM for violation of the UCMJ, Article 86.  He was sentenced to confinement at hard labor for 4 months and forfeiture of $50 per month for 4 months.  The sentence of confinement was suspended for 6 months.

10.  In December 1951 the applicant was released from pre-trial confinement and thereafter assigned to the 1st Armored Division, Fort Hood, Texas. 

11.  On 12 January 1952 he departed AWOL and remained absent until 6 February 1952.  His final AWOL was from 19 February 1952 to 30 April 1952.

12.  On 22 May 1952 he was convicted by a general court-martial (GCM) for violation of the UCMJ, Article 86 and Article 85.  He was sentenced to a dishonorable discharge (DD) from the service, forfeiture of all pay and allowances, and confinement at hard labor for 2 years and 2 months.  The approving authority approved so much of the sentence for Article 86 as provides for a bad conduct discharge (BCD), total forfeiture of all pay and allowances, and confinement at hard labor for 6 months.  He was held in confinement at the Post Stockade, Fort Hood, Texas, from 19 February 1952 and thereafter transferred to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, on 5 August 1952.

13.  A 10 June 1952 neuropsychiatric examination found that he was not at the time of the alleged acts so far free from mental defect, disease or derangement as to be able concerning the particular acts charged to adhere to the right.  He gave a strong clinical impression of mental deficiency with a full scale IQ of 64.  It was further determined that while the applicant was able to adhere to the right and refrain from the wrong in matters of simple clear cut crimes such as murder or rape, he was unable to adhere to the right in the alleged offense because of poor rational power as well as an overwhelming feeling that he must do something for his mother.  The assistant Staff Judge Advocate (SJA) recommended that the all the findings and the sentence at general court-martial be disapproved based upon the psychiatrist’s professional opinion that the applicant was not competent to stand trial.  

14.  On 10 July 1952 the Assistant SJA, HQ, 1st. Armored Division, Fort Hood, Texas, provided a final opinion and recommendation of the general court-martial proceedings at the request of the convening authority.  It was noted that the sanity of the applicant was not an issue during court-martial proceedings, however, at trial the applicant did, without notice to defense counsel, change his previously agreed upon pleas.  Additionally, after sentencing the applicant was unable to distinguish “2 months” from “6 months”, causing the defense counsel concern over the applicant’s mental competency.

15.  The division SJA disagreed with the assistant SJA’s recommendation and recommended that the findings of AWOL be approved and that the applicant be discharged with a BCD, forfeiture or all pay and allowances, and confinement at hard labor of 6 months.

16.  On 9 October 1952 the applicant was administered a Admission Classification Summary, DD Form 464, to include a Wechsler-Bellevue Intelligence Scale, the DB Sentence Completion Test, the Minnesota Multiphasic Personality Inventory, and the Lee-Thorpe Occupational Interest Inventory.  Primary diagnosis was of Borderline mental defective, very isolated, withdrawn and schizoid.  It was determined that he was completely dependent upon his mother and ran away to join the service when his mother remarried and his stepfather asked him to leave the home.  His mother left the stepfather because the applicant joined the service, and thereafter the applicant went AWOL to be with his mother because he was her principle means of support.

17.  A Red Cross Social History was taken on 17 September 1952.  The applicant’s mother indicated that he had gone AWOL, at least in part, because fellow servicemembers frightened him with stories of going overseas.  He also told his mother that participating in a sham battle during maneuvers frightened him. 

18.  On 3 November 1952 he was discharged from the Army with a BCD under the provisions AR 615-364 and General Court-Martial Orders 114, HQ, 1st. Armored Division, Fort Hood, Texas.  He had 451 days lost time and was credited with 4 months and 12 days of active military service.  

19.  AR 615-364, then in effect, provided for the elimination of enlisted personal pursuant to an approved sentence of a special or general court-martial imposing a bad conduct discharge.

CONCLUSIONS:

1.  From a purely technical point of view, trial by court-martial was warranted and conviction and discharge were effected in accordance with applicable, law and regulation.

2.  The applicant’s records indicate that he only completed 8 years of formal education and achieved an AFQT score of 13 (i.e., mental category IV, slow learner).  

3.  The Board noted that at the time of his general court-martial the applicant underwent a psychiatric examination and the psychiatrist indicated that he was unable to adhere to the right in the alleged offense because of poor rational power and that he was not competent to stand trial.  

4.  The Board does not condone the applicant’s acts of indiscipline.  However, it should be noted that his offenses were violations of military rules and regulations and were not otherwise serious offenses against society.

5.  In view of the foregoing, the Board found that the applicant’s inability to adapt to military life and his associated misconduct were mitigated by his educational background and his mental competence at the time he served, and warrant clemency. 

6.   Accordingly, in the interest of justice and as a matter of clemency, 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 to show that the individual concerned was separated from the service with a General Discharge Certificate on 3 November 1952.  

2.  That the Department of the Army issue to the individual concerned a General Discharge Certificate from the Army of the United States, dated 3 November 1952, in lieu of the discharge certificate of the same date now held by him.
 
3.  That the applicant be issued a new DD Form 214 reflecting the aforementioned correction.

BOARD VOTE:  

__fne___  __esc____  __sk____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR199018650	
SUFFIX		
RECON		
DATE BOARDED	19991103	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19521103	
DISCHARGE AUTHORITY	AR 615-364 .  	
DISCHARGE REASON	6800	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1. 9307		
2. 9324		
3.		
4.		
5.		
6.