PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  4 April 2002
	DOCKET NUMBER:  AR2001063189

	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. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Roger W. Able		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 that his dishonorable discharge be upgraded to a general discharge.

3.  The applicant states that he was unlawfully incarcerated in Fayetteville, Arkansas, was denied the opportunity to notify his chain of command, and that he was charged with 700 days of “bad time”, which was invalid because he was wounded and hospitalized in Korea and Japan.  He was sent to a Korean hospital for 2 weeks and was then transferred to Techikawa, Japan for 10 months for hospitalization and endured surgery to correct his entire inside injuries.  He was given 3 days leave, arrested by civilian authorities in Fayetteville, Arkansas, and was incarcerated for several weeks.  There were no charges filed, no explanation of why he was there, and he was not allowed one phone call.  He was released from jail and immediately returned to his unit at Camp Chaffee, Arkansas and was arrested.  He spent 1 month in the stockade, was later court-martialed, and was not represented by counsel.  He was charged with being Absent Without Leave (AWOL) and has been unable to prove his whereabouts of the time.  He suffered severe wounds and was awarded the Purple Heart.  He states that his discharge has caused him an injustice in many ways and that he was not allowed compensation for his disabilities suffered in combat.  In support of his application, he submits a copy of a VA Form 21-4138 (Statement in Support of Claim), a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States), and a copy of his Surgeon General’s Office (SGO) Hospital Listing. 

4.  The applicant’s military records were destroyed or lost during the National Personnel Records Center fire of 1973.  Records available to the Board were obtained from alternate sources and show he enlisted on 26 July 1950.  He served in Korea for 9 months and 1 day.

5.  He was convicted by a general court-martial on 2 December 1952 for desertion from 7 December 1951 to 13 November 1952 (343 days) when he was apprehended by civilian authorities.  His sentence consisted of a forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a dishonorable discharge.  The sentence was approved on 28 January 1953.

6.  The applicant was confined in the US Disciplinary Barracks, Camp Gordon, Georgia, pending completion of appellate review.

7.  On 13 February 1953, the Army Board of Review affirmed the findings and sentence as provided by the convening authority.

8.  On 4 November 1953, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a Dishonorable Discharge Certificate.

9.  The applicant provided a copy of a SGO Hospital Listing which shows that he received a shrapnel wound to his leg as a result of enemy action on 18 July 1951, while serving in Korea.

10.  The applicant’s DD Form 214 shows he was awarded the Combat Infantryman Badge and the Korean Service Medal with three bronze service stars.  His discharge document does not show the Purple Heart as an authorized award.

11.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant’s DD Form 214, which was authenticated in his own hand, shows the entry “None.”  There is no record that the applicant was awarded the Purple Heart.

12.  The applicant’s death certificate was provided by his daughter, which shows that he passed away on 2 February 2002.

13.  Army Regulation 615-364, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1(a) of the regulation provided, in pertinent part, that an enlisted person will be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge.  

14.  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.

15.  Army Regulation 600-8-22 provides for award of the United Nations Service Medal.  In pertinent part, the regulation states that the period of eligibility for the United Nations Service Medal was between 27 June 1950 and 27 July 1954.  The regulation provides that this service medal was awarded to members of the Armed Forces of the United States dispatched to Korea or adjacent areas on behalf of the United Nations.  Award of the Korean Service Medal automatically establishes eligibility for award of the United Nations Service Medal.

16.  Review of the available records does not reveal that he was recommended for or entitled to any other awards or decorations.

CONCLUSIONS:

1.  The Board notes the applicant’s contentions that he was unlawfully incarcerated in Fayetteville, Arkansas and was denied the opportunity to notify his chain of command.  However, there is no evidence in the available records, and the applicant has provided no evidence, to support his contentions.  

2.  The Board notes his contention that he was charged with 700 days of AWOL; which was invalid because he was wounded and hospitalized in Korea and was transferred to Techikawa, Japan for 10 months.  The evidence of record shows that he was hospitalized in Korea for approximately 66 days.  There is no evidence in the available records to show that he was transferred to Japan for
10 months after his hospitalization in Korea.

3.  The applicant was officially charged and court-martialed for his 700 days of AWOL, which is too serious to be excused or to warrant relief.

4.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the charge appropriately characterizes the misconduct for which the applicant was convicted.

5.  The evidence of record clearly shows that he was hospitalized in Korea for a shrapnel wound that he received to his leg on 18 July 1951.  Therefore, the applicant is entitled to correction of his records to show the award of the Purple Heart.

6.  The evidence of record shows that the applicant was eligible for the United Nations Service Medal based on award of the Korean Service Medal.
Therefore, he is entitled to correction of records to show this award

7.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case for the individual concerned be corrected:

a.  by showing in item 27 (Decorations and Awards) that he was awarded the Purple Heart and the United Nations Service Medal based on award of the Korean Service Medal; and

b.  by showing in item 29 (Wounds Received as a Result of Action with Enemy Forces) the entry “Korea 18 July 1951.”

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__ao____  __kf___  __ra____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR2001063189	
SUFFIX		
RECON		
DATE BOARDED	20020404	
TYPE OF DISCHARGE	DD 	
DATE OF DISCHARGE	19531104	
DISCHARGE AUTHORITY	AR 615-364	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360		
2.		
3.		
4.		
5.		
6.