PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           31 May 2000
	DOCKET NUMBER:   AC1999031533

	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			
	Mr. W.W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John P. Infante		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. In effect, the applicant requests reconsideration of his previous appeal to correct his records by changing his discharge to honorable.  The applicant states that he refused the order because his wounded leg precluded his ability to function properly.

3.  The Memorandum of Consideration (MOC) reflecting the Board’s 
13 January 1988 decision to deny his request due to failure to timely file is incorporated herein by reference as if wholly set forth.

4.  In addition to the information contained in the MOC, his service records also show that the applicant arrived in Italy on 18 October 1944.  He served as an infantryman and was awarded the Combat Infantryman Badge.  He sustained multiple, moderately severe, penetrating shrapnel wounds to the right thigh on 24 October 1944 and was hospitalized until 23 January 1945.  He returned to duty with his line infantry company.  On 6 February 1945 he refused the order of a first lieutenant to man a position for which he was convicted by general court-martial and sentenced to total forfeitures, life in confinement and a dishonorable  discharge.

5.  The Conclusion paragraph of the Staff Judge Advocate’s review of the applicant’s trial by general court-martial reads:

        The Division psychiatrist states that the accused is able to distinguish between right and wrong and to adhere to the right but needs hospitalization.  According to the findings of the psychiatrist, accused is legally responsible for his acts.  Accused was wounded in action on 24 November 1944, for which he was hospitalized for two months.  Although the accused’s nervousness is not sufficient to justify a release from confinement or too exonerate him in this instance it should in a large degree mitigate his punishment.  It would not be just, nor would it have a proper deterrent effect on others to punish severally a soldier whom the medical experts in effect say is not normal under battle stimuli.  There is no truer saying than “The burnt child dreads the fire.”  This soldier had been wounded and this wound was no doubt the cause of his unusual fear and nervousness.  After the accused is confined in the Disciplinary Training Center he should be examined again psychiatrically and if it appears then that he s not recovering satisfactorily, he should be released through medical channels.

6.  The convening authority reduced the sentence to confinement from life to 
5 years.  The applicant was ultimately separated on 27 June 1946 with a blue discharge.

7.  A full psychiatric evaluation on 26 March 1946 included psychometric testing and evaluation by both a psychologist and a psychiatrist.  The psychologist concluded, in part “ this inmate is mentally deficient.  He is rater inarticulate and reacts with naïve directness to most situations.he and the Army would probably be best served if he were discharge via AR 615-369 [inaptitude and  unsuitability]”  The psychiatrist observed “He answers questions only in monosyllables and can understand only the simplest of conversation.  His fund of knowledge is extremely limited.it is believed that the inmate could not function on higher than a low borderline level.”  The psychiatrist noted that the applicant had served for 2 years and 2 months without an infraction of record and “considering the amount of stress present at the time of the confining offense it is the opinion of the examiner that the inmate made an excellent adjustment to military service.He should be considered for restorationHowever, if restoration is not considered it is recommended that he be separated from the military service with a white discharge on the basis of mental deficiency.” 

8.  On 26 April 1946 the classification and disposition board at the United States Disciplinary Barracks (USDB) voted to recommend remission of the applicant’s sentence and discharge under Army Regulation 615-369.  The commandant concurred. 

9.  The Surgeon General recommended in a 14 May 1946 memorandum that “this case merits special consideration for discharge other than dishonorable in accordance with paragraph 3 W.D. Memo 600-45 dated 1 September 1945.  That memorandum is cited in the remarks section of his WD AGO Form 53-55 (Enlisted Record and Report of Separation)

10. Army Regulation 615-369, then in effect, provided the policy and procedures for the administrative separation of enlisted personnel for inaptitude and unsuitability.  Characterization of the discharge was to be based on the individual’s overall record of service.

11. Army Regulation 615-360, in effect at the time, set forth the policy and procedures for separation of enlisted personnel.  Section VIII provided for cases of ineptness (lack of a required degree of adaptability) and for those who demonstrated undesirable habits and traits of character.  This section stated the 
basic War Department policy that no man would be separated prior to the 

expiration of his term of service unless no useful service could be obtained.  The blue colored paper identified this under other than honorable conditions discharge certificate.  Only the pertinent regulation was listed.  Neither a reason for separation nor a characterization of service was listed.  An honorable (white) discharge was to be issued to those individuals who tried faithfully to serve, but could not (ineptness). 

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

13.  An FBI records check indicates that, aside from an unadjudicated DUI in 1990, the applicant has not been arrested since his release from the USDB.
   
CONCLUSIONS:

1. 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.

2.  However, notwithstanding the consistent recommendations that the applicant’s limited abilities mitigated his behavior to the extent that he should be separated for unsuitability the applicant was restored to duty for the sole purpose of separating him with a blue discharge.

3.  The Board notes that the applicant does not have a dishonorable discharge, but acknowledges that he is probably unaware of that fact.

4.  In light of all the circumstances of this case, but especially the applicant’s
2 years and 2 months of offense free honorable service before the incident, his combat experience as evidenced by award of the CIB and the Purple Heart, the fact that he returned to his line unit and tried to serve and his limited abilities the current situation is unjust.

5.  Law precludes the Board from taking any action that would disturb the finality of the conviction by court martial but may act upon the ultimate sentence as a matter of equitable relief.

6.  In view of the foregoing findings and conclusions, correcting  the applicant’s records as recommended below would rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the blue discharge dated 27June 1946 currently held by the individual concerned and by issuing him an honorable discharge of the date due to secretarial authority.                   

BOARD VOTE:

___JEV__  __SK___  _JPI____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___James E. Vick	______
		        CHAIRPERSON

INDEX

CASE ID	AR1999031533	
SUFFIX		
RECON		
DATE BOARDED	20000531	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.