PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             29 May 2003                   
	DOCKET NUMBER:    AR2002074512

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful 		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Frank C. Jones, II		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 (UOTHC) be upgraded to an honorable discharge.   

3.  The applicant states, in effect, that at the time of the incident, he was given the option of resigning with an UOTHC discharge, and he failed to consider other options available to him at the time.  He claims that his discharge was based on one sordid incident, which was his only infraction in his more than 17 years of otherwise honorable service.  He states that he is now 83 and he would like his record cleared if at all possible.  He claims that the incident occurred in 1955 when his father died at Walter Reed Army Hospital and that this personal tragedy could have possibly affected him and his judgment.  

4.  The applicant’s military records show that on 18 August 1955, he was discharged UOTHC under the provisions of Army Regulation 635-120, by reason of resignation for the good of the service.  At the time of his release from active duty (REFRAD), the applicant held the rank of major (MAJ).  

5.  The applicant’s military records show that he served on active duty for almost seventeen years, in both an enlisted and officer status.  The record contains no evidence of any disciplinary problems prior to the incidents that led to his resignation for the good of the service.  However, the record does reveal an extensive history of outstanding performance that includes his service during World War II, which included his participation in three campaigns, one of which included an assault landing.  In addition, he earned many awards that included, but was not limited to the Silver Star, Bronze Star Medal, and Combat Infantryman Badge.  In addition, he was captured by the Germans and held as a Prisoner of War (POW) for a short period before escaping.  

6.  On 21 June 1955, a Charge Sheet (DD Form 458) was prepared preferring a court martial charge against the applicant for violation of Article 134 of the Uniform Code of Military Justice (UCMJ), for six specifications of taking indecent liberties with minor females under the age of sixteen between August 1954 and May 1955.   

7.  On 28 June 1955, an Army psychiatrist at Fort Belvoir, Virginia, provided a certificate regarding the results of a mental evaluation conducted on the applicant.  It stated that the applicant was seen at the psychiatry clinic at the 
Fort Belvoir Army Hospital on 22, 24, and 27 June 1955.  During this time, he was given a complete social, psychological, and psychiatric examination, and was diagnosed with acute situational maladjustment.  

8.  The examining psychiatrist, after outlining the applicant’s background, the information obtained through the evaluation, and discussions with the applicant, opined that the applicant would make a good psychotherapeutic candidate.  He had good intelligence, anxiety about his present state, and a past history of excellent performance, which were excellent criteria for prognosticating the effectiveness of any psychotherapeutic effort.  The psychiatric staff recommended that the applicant be retained in the service, and that he be assisted in locating therapeutic assistance for his condition.  

9.  The examining psychiatrist also volunteered the Fort Belvoir clinic to act as the referring agency, which could refer the applicant to a psychiatrist who could work with his problem.  It was further opined that punitive measures would not accomplish a great deal and may cause irreparable damage to the applicant’s personality development.  In addition, it stated that although his actions were certainly to be socially and morally condemned, there did seem to be a reserve of emotional strength that could be utilized in salvaging him into a respectable and productive citizen.  The examining psychiatrist concluded by stating that whether the applicant would be able to realize the potential he unquestionably had would depend a great deal on the humane and judicious treatment of his situation at that time. 

10.  On 15 July 1955, the applicant submitted a request for resignation under the provisions of Army Regulation 635-120, for the good of the service/in lieu of trial by court-martial.  In his request, he asked for leniency, and that he be allowed to retain his Regular Army grade of chief warrant officer three (CW3).  In support of his leniency request, he referred to the statement provided by the Fort Belvoir psychiatrist and in particular to the recommendation that he be retained in service.  He also outlined his long and distinguished record of service and pointed out that he freely confessed to the acts of misconduct.  He further explained that the misconduct occurred in a short period of time, and were the result of his being under great strain as a result of his father’s death and job pressures.  He finally commented that with proper psychiatric treatment, a complete cure could be anticipated, and he commented that he had made arrangements to receive the necessary treatment. 

11.  On 11 August 1955, the Office of The Adjutant General (OTAG), Washington D.C., approved the applicant’s request for resignation and directed that orders be issued directing his UOTHC discharge for the good of the service/in lieu of trial by court-martial.  On 15 August 1955, he was discharged accordingly.  

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his discharge should be upgraded to fully honorable based on the fact that it was based on an isolated incident that occurred in an otherwise outstanding record of almost seventeen years of active duty service, and the Board finds this claim has merit. 

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. If further confirms that the applicant voluntarily, and in writing, requested to resign from the Army in lieu of trial by court-martial.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  However, notwithstanding the fact that the applicant’s discharge was proper and equitable at the time it was issued, the Board finds that there are sufficient reasons to upgrade his discharge in the interest of compassion and equity.  The applicant’s World War II service was outstanding and heroic, and it resulted in his receiving the Silver Star, Bronze Star Medal, and Combat Infantryman Badge.  Further, the applicant was captured and held as a POW during World War II.  

4.  In addition, while the Board does not excuse the incidents for which the applicant was charged and that ultimately led to his UOTHC discharge, it does find that the mitigating factors pointed out by the attending psychiatrist at the time contributed to the applicant’s misconduct.  In the opinion of the Board, these mitigating factors, coupled with the applicant’s outstanding combat service record during World War II, and the fact that he has lived the majority of his life with the stigma of the bad discharge provide a sufficiently compelling case for granting the requested relief in the interest of compassion and equity. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned received an honorable discharge on 
15 August 1955, in lieu of the UOTHC discharge of the same date he now holds; and by providing him with a corrected separation document that reflects this change. 

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

___FCJ__  __LS___  __EL__  DENY APPLICATION

		Luther L. Santiful
		CHAIRPERSON

INDEX

CASE ID	AR2002074512	
SUFFIX		
RECON		
DATE BOARDED	2002/09/DD	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1955/08/15	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Resignation In Lieu of Court Martial 	
BOARD DECISION	Grant 	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.