PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            11 February 2000
	DOCKET NUMBER:   AR1999029818

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		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 bad conduct discharge (BCD) be upgraded to an honorable discharge.

3.  The applicant states In effect, that the problems he experienced during his second enlistment were directly related to what is diagnosed as post traumatic stress disorder (PTSD).  He goes on to state that he served his initial enlistment in Korea on Kojado Island guarding prisoners of war and while he was never under fire, he killed several prisoners with his bayonet during a riot in which his platoon was sent in without ammunition and with fixed bayonets to quell the riot.  He continues by stating that he was about 19 years of age and scared to death and that he has never lost the feeling of what he did.  He also states that after completing his first enlistment he was honorably discharged and went home; however, he felt like a stranger at home and reenlisted a month later and was sent to the Far East (Japan).  He goes on to state that during this tour he went to the club and had a couple of drinks and left the club.  When he woke up he was on a stripped bed in what he thought was a mental ward and was informed that he had tried to kill another soldier with a 45 caliber pistol.  However, he does not remember anything of the sort happening and attributes it to a blackout.  He further states that he was tried by court-martial and sentenced to a BCD.  After being discharged he drank heavily and served several 30-day sentences; however, he has been sober now for 25 years and has not touched alcohol since that time.  He has never married and has no family and desires to obtain housing with the Soldier’s and Airman’s Home in Washington, D.C. but has been denied due to his BCD.  He also states that he was never in any trouble prior to the incident that led to his BCD.  In support of his application he submits a copy of his award of disability compensation from the VA, a letter from his VA counselor, and a letter from a VA physician.  His counsel contends that clemency is warranted in the applicant’s case because he had no prior offenses before he was convicted by court-martial and because the underlying cause of his misconduct was the recently diagnosed PTSD that the applicant suffers from.  He also contends that had the applicant been properly diagnosed and treated at the time, the applicant would not have self-treated himself with alcohol and in all likelihood would not have gotten into trouble.

4.  The applicant’s military records military records were destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri which destroyed millions of service records.  However, reconstructed records show that the applicant was inducted on 17 May 1951 and was awarded the military occupational specialty (MOS) of a generator operator in the chemical corps.  He was promoted to the rank of corporal on 13 May 1952.

5. He served in Korea from December 1951 to November 1952 with a Military Police (MP) Guard unit guarding prisoners of war.  He was then transferred to Japan where he again served in an MP unit for a year.  He was returned to Fort Bragg, North Carolina and was honorably discharged on 16 February 1954 due to the expiration of his term of service.  He had served 2 years and 9 months of total active service and had served 2 years and 2 days of foreign service.

6.  On 5 March 1954 he enlisted for a period of 3 years, was assigned the MOS of a military policeman, and was transferred to Japan and attended an MP school for 3 weeks.

7.  On 23 November 1955, while serving in the rank of specialist third class, he was convicted by a general court-martial of wrongfully appropriating a government 45 caliber pistol, committing an assault on another soldier with the pistol, assaulting a military policeman in the performance of his duties, and being disorderly in the NCO Open Mess.  He was sentenced to confinement at hard labor for 1 year, a forfeiture of $70.00 per month for 1 year, and a BCD.  He was transferred to the United States Disciplinary Barracks at Lompoc, California to serve his confinement.

8.  The Army Board of Military Review affirmed the findings and sentence of the general court-martial on 13 January 1956.

9.  A review of the staff judge advocate (SJA) review of the case indicates that on the night of 8 September 1955, the applicant got drunk at the NCO Open Mess and became boisterous and was ejected by the Sergeant at Arms and club custodian.  Shortly thereafter, he entered the Provost Marshal Office and went to the weapons rack while remarking to the sergeant on duty that he wanted a pistol.  When the sergeant tried to stop him, the applicant struck him and caused him to be stunned long enough to take a 45 caliber pistol and magazine with seven rounds of ammunition.  The sergeant alerted the MP at the gate but the applicant had already gone out the gate.  When the MP pursued the applicant, the applicant pointed the pistol at the MP and a struggle ensued that resulted in the pistol being taken away from the applicant and him being subdued.  During the trial by court-martial two members of the applicant’s unit, to include his platoon sergeant testified that the applicant was a good soldier, that he had no prior disciplinary problems, and that they would like to have him in their organization.

10.  On 11 September 1956 he was discharged pursuant to his court-martial conviction with a bad conduct discharge.  He had served 1 year, 6 months and 12 days of active service during his current enlistment and had 361 days of lost time due to confinement.  He had a total of 4 years, 3 months, and 12 days of active service.

11.  A review of the documents provided by the applicant include a rating decision by the VA which shows that his service medical records were not available and that information obtained from the applicant as well as an examination was used to grant the applicant service connected disability (30%) for PTSD.

12.  A statement from the applicant’s counselor/social worker reiterates the applicant’s theory of what caused his PTSD (experiences as a POW guard) and indicates that he has been receiving treatment for 2 years.  The counselor also indicates that the applicant never married, is a loner, but has never been a threat to society.  She also indicates that he lives on a fixed income, is approaching 70 years of age, and opines that it would be helpful for him to reside in the Soldier’s home.  She goes on to state that the incident occurred over 40 years ago, that the applicant has suffered a great deal as a result of the BCD, and that the staff at the VA strongly feel that the incident was PTSD related.

13.  The letter (progress notes) from the VA physician also reiterate the applicant’s story/sequence of events to led to his illness (PTSD).  The physician indicates that the applicant has been treated by the VA since 1996, that his symptoms have persisted since his discharge from the military, that his trauma is compounded by his BCD, and that they have significantly affected his social and vocational functioning.  He also indicates that the applicant had an honorable discharge with multiple awards which included the Bronze Star during his first enlistment.  

14.  A review of the applicant’s separation documents indicate that the applicant was awarded the National Defense Service Medal, the Korean Service Medal with three bronze service stars, and the United Nations Service Medal.  There is no indications that he was awarded any medals for valor or exceptional achievement during his service.

CONCLUSIONS:

1.  The applicant was properly discharged pursuant to a sentence by a general court-martial with no indication of any violations of any of the applicant’s rights.

2.  The statutory authority under which this Board was created (title 10, U.S. Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

3. The applicant’s contention that he was suffering from PTSD at the time has been noted by the Board.  However, the Board notes that the applicant was a military policeman whose responsibility it was to enforce the law.  He used his position while in a drunken state to gain access to a firearm with the intent to do harm to others.  While alcohol and PTSD may have been contributing factors, there is no evidence in the available records to show that the applicant was not responsible for his actions or that he could not distinguish from right or wrong.  Likewise, there is insufficient evidence to show that he was in fact suffering from PTSD or so-called battle fatigue as it was then known at the time.

4.  While the applicant has provided statements from VA officials who opine that PTSD was the cause of his misconduct, their assessment is based on information obtained from the applicant and not from official medical records in effect at the time.  Therefore, in the absence of evidence to the contrary, it must be presumed that the applicant was deemed mentally and physically fit by medical personnel at the time of his initial separation as well as at the time of his trial by court-martial.

5.  However, although the Board cannot set aside a court-martial conviction, it has the authority to grant clemency.  The available facts in this case indicate that consideration should be given to the fact that the applicant served honorably in Korea during a time of conflict and that the incident that led to his BCD was the only isolated incident of indicipline he had.  In addition, he was considered an excellent soldier, which is evidenced by the testimony given at the trial by     court-martial. 

6.  While there is no doubt as to the applicant’s guilt and that his punishment was in accordance with policies then in effect, the Board believes that he should not continue to be stigmatized with a BCD.  While the applicant’s service does not warrant a fully honorable discharge, the Board is inclined, as a matter of clemency, to upgrade the applicant’s discharge to a general discharge.

7.  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 that the individual concerned was separated from the service with a General Discharge Certificate on 11 September 1956.

2.  That the Department of the Army issue to the individual concerned a General Discharge Certificate from the Army of the United States, dated 11 September 1956, in lieu of the BCD of the same date held by him.

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

BOARD VOTE:  

__gp____  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  __mkp___  __tbr ___  DENY APPLICATION

		___Margaret K. Patterson____
		        CHAIRPERSON

INDEX

CASE ID	AR1999029818	
SUFFIX		
RECON		
DATE BOARDED	2000/02/11	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1956/09/11	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	675	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  144.6800	675/A68.00	
2.		
3.		
4.		
5.		
6.