MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            22 June 2000      
	DOCKET NUMBER:   AR2000038510

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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)

APPLICANT REQUESTS:  Two awards of the Purple Heart (correctly known as the Purple Heart (First Oak Leaf Cluster)) and that his general discharge be upgraded to honorable.  

APPLICANT STATES:  That he was wounded on two separate occasions in New Guinea during World War II.  He also contends that his record indicates only minor offenses and that under current standards he would not have received the type discharge he did.  In support of his application, he submits a WD AGO Form 
38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement) dated 27 December 1945; an undated document from the White House signed by Harry Truman; WD AGO Form 
100 (Separation Qualification Record), WD AGO Form 53-55 (Enlisted Record and Report of Separation) with an effective date of 4 January 1946; Application for Transfer, dated 25 May 1946; Notification of Board Proceedings, dated 2 April 1947; Special Court-Martial Order Number 101, dated 29 April 1947; a Formal Complaint, dated 6 January 1948; WD AGO Form 53-58 (Enlisted Record and Report of Separation) with an effective date of 7 April 1948; a character reference letter, dated 26 September 1972; and a Certificate of Service in recognition of 20 years of Federal Service, dated 25 January 1968.

COUNSEL CONTENDS:  The Veterans of Foreign Wars, as counsel for the applicant, asks the Board to consider the applicant’s duty performance during his first enlistment from 1940 to 1946 and the medals he received during World War II.  Counsel also requests that the Board consider the applicant’s post service conduct which includes a retirement after 20 years of service as a civilian employee of the Department of the Army and his involvement in community and church activities.  Counsel contends that the offenses which led to the applicant’s general discharge were minor and that whatever behavior existed over 50 years ago has not existed since, does not exist now and because of an established track record, will not exist again in the future.  With regards to entitlement to the Purple Heart (First Oak Leaf Cluster), counsel states that the applicant’s physical examination prior to discharge, dated 27 December 1945, lists three wounds.  According to this document, two wounds were incurred while in action against the enemy and one wound was not as a result of enemy action.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant’s military records show that he enlisted on 3 August 1940, served as a heavy truck driver in the Asiatic-Pacific Theater from 29 November 1943 through 3 December 1945 and was honorably discharged on 4 January 1946.  He reenlisted on 5 January 1946 for a period of 3 years.

On 13 August 1946 the applicant was convicted by summary court-martial of being disorderly in public.

On 12 April 1947 the applicant was convicted by special court-martial of violating a standing order by having an unauthorized Japanese female in his quarters.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $40 pay per month for 6 months.  The convening authority approved the sentence on 29 April 1947.

On 26 November 1947 nonjudicial punishment was imposed against the applicant for making a false statement, being AWOL from bed check and reveille and wrecking a 2 ½ ton truck.  

On 5 December 1947 the applicant was convicted by summary court-martial of breaking restriction.

On 26 December 1947 nonjudicial punishment was imposed against the applicant for being AWOL from bed check.

On 9 January 1948 the applicant’s unit commander recommended that he be separated under the provisions of Army Regulation 615-368, for unfitness.  The unit commander based his recommendation for separation on the applicant’s traits of character which made him undesirable for the post war Army.  The unit commander recommended that the applicant appear before a board of officers to determine whether or not he should be discharged from the service prior to his normal date of expiration of service.  

The applicant appeared before a board of officers on 19 January 1948.  The Board determined that the applicant “Gives evidence of habits other than those indicating discharge for physical or mental conditions as provided for in AR [Army Regulation] 615-361, which render retention in the service undesirable.” and “Attempts to rehabilitate the soldier have failed.”  The Board recommended that the applicant be separated under the provisions of Army Regulation 615-368 for habits which render retention in the service undesirable and that he be furnished with an undesirable discharge.  On 29 January 1948 the officer exercising general court-martial jurisdiction approved the recommendation. 

On 27 January 1948 the applicant was convicted by summary court-martial of violating existing regulations by wrongfully leaving his company area without a pass and wrongfully entering an “Off Limits” house.

The applicant’s case was reconsidered by a board of officers on 12 March 1948. The Board determined that the applicant “Gives evidence of traits of character other than those indicating discharge for physical or mental conditions as provided for in AR 615-361, which render retention in the service undesirable.” The Board recommended that the applicant be separated under the provisions of Army Regulation 615-368 for traits of character which render retention in the service undesirable and that he be furnished a general discharge.  This Board did not concur with the Overseas Board but recommended that the applicant be given a general discharge in view of his former service.  On 29 March 1948, the officer exercising general court-martial jurisdiction approved the recommendation.        

On 7 April 1948 the applicant was separated with a general discharge under the provisions of Army Regulation 615-368, for unfitness.  He had served 
6 years, 10 months and 4 days of total active service with 157 days lost due to AWOL and confinement.

The applicant’s WD AGO Form 53-55 (Enlisted Record and Report of Separation), which was authenticated in his own hand, does not show any award of the Purple Heart as an authorized award.  Item 34 (Wounds Received in Action) of the discharge document shows “none”.

There are no orders in the applicant’s service personnel records which show that he was awarded the Purple Heart.  There is also no evidence in his medical records which shows he was treated for injuries or wounds sustained as a result of hostile action during World War II.

Section 8 (Wounds Received Through Enemy Action) on the applicant’s Service Record is blank. 

The applicant’s records contain the Proceedings of the Army Discharge Review Board (ADRB) which convened on 3 March 1952.  In pertinent part, the sworn  proceedings state “MEMBER:  Did you have any actual combat experience in New Guinea?  APPLICANT:  I don’t think you could say action; I only maintained the supply line and charged with the maintenance of ammunition flow and transporting troops from ship to shore and so forth.”

The applicant provided a copy of WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), dated 27 December 1945.  This report shows that the applicant reported that he sustained an injury to his left foot from a bomb explosion at Lae, New Guinea in 1943.  There is no indication that this injury was a result of hostile action.  The form also shows that the applicant reported that he sustained an injury to his left jaw while in action against the enemy at Lae, New Guinea, in September 1943.  The report further states that the applicant reported that he sustained an injury to his left wrist during operation against the enemy at Finschaffen, New Guinea, in 1943. 

On 7 November 1951 the applicant applied to the ADRB for a discharge upgrade. The ADRB denied the applicant’s appeal on 17 March 1952.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  The bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

Army Regulation 615-368, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends, chronic alcoholism, criminalism and drug addiction. Action to separate an individual was to be taken when, in the judgement of the commander, rehabilitation was unsuccessful, impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.  

Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s contention that he was wounded twice in New Guinea and the Report of Physical Examination wherein the applicant reported that he was wounded in action on two separate occasions in New Guinea in 1943.    

2.  However, evidence of record shows the applicant made a sworn statement during his ADRB proceedings on 3 March 1952 wherein he indicated that he did not have any actual combat experience in New Guinea.     

3.  There is no evidence of record which shows the applicant was injured or treated for wounds as a result of hostile action during World War II.  

4.  Evidence of record shows the applicant signed his WD AGO Form 53-55 attesting to the fact he was not entitled to any award of the Purple Heart.  

5.  The preponderance of evidence in this case shows he was not wounded or otherwise entitled to any award of the Purple Heart.  Therefore, the applicant is not entitled to correction of his military records to show the Purple Heart (First Oak Leaf Cluster).

6.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

7.  The type discharge directed and the reasons therefore were appropriate considering all the facts of the case.

8.  The Army Discharge Review Board denied the applicant’s previous request for a discharge upgrade.

9.  The Board reviewed the applicant’s record of service which included one special court-martial, three summary courts-martial, two nonjudicial punishments and 157 days lost and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

LLS_____  AAO____  RA______  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000038510	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19480407	
DISCHARGE AUTHORITY	AR 615-368  	
DISCHARGE REASON	Unfitness	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.	107.0015	
3.		
4.		
5.		
6.