IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20150006695 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his general discharge be upgraded to an honorable discharge. 2. The applicant states he served in the Army from April 1950 to April 1954 including a period of combat in Korea from September 1950 to August 1951 during which he was wounded. From Korea, he was transferred to Germany where he was involved, in his opinion, in a minor incident that resulted in a general discharge. He feels that his general discharge was unjust because it was based on an isolated incident. 3. The applicant states in essence that since his discharge, he has worked as electrician and lineman, has been married for nearly 50 years, adopted and raised two daughters, and has been a good citizen and neighbor never turning anyone down for help - helping family, friends, neighbors and acquaintances with various projects and/or repairs. 4. The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period 28 April 1950 to 10 April 1954 and a copy of his Purple Heart Certificate. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: Counsel, a Member of Congress, submits a statement in support of the applicant's request. He asks the Board to consider the applicant's combat service in Korea, during which time he received the Purple Heart. He also notes the applicant's advanced age and failing health. He states: a. The applicant's service record was "clean" until the incident that led to his general discharge. We are learning more about post-traumatic stress disorder (PTSD) and, considering the 3 September 2014 memorandum from the Secretary of Defense regarding corrections boards' consideration of PTSD in discharge upgrade cases, one could conclude that the incident leading to his general discharge may have been due to PTSD. b. The applicant took responsibility for his actions at the time and believes that one incident in almost 4 years of service should not define his service as "general." He served honorably, to include combat service, and they believe the characterization of his service should reflect that. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitation for timely filing. 2. There are no military personnel records available from the National Personnel Records Center (NPRC). They are presumed to have been destroyed in the 1973 NPRC fire. His military medical treatment record was provided by NPRC. 3. His DD Form 214 shows that he: * served in the Regular Army from 28 April 1950 to 10 April 1954, a period of 3 years, 11 months, and 10 days, of which 2 years, 1 month, and 28 days was overseas * enlisted for 3 years and voluntarily extended for 1 year * was awarded the Purple Heart Medal by Department of the Army Letter Order, dated 15 December 1953, as a result of being wounded by shrapnel in his left hand and left leg on 17 March 1951 * was awarded or authorized the Korean Service Medal with 4 bronze service stars, Combat Infantryman Badge, United Nations Service Medal, Army of Occupation Medal (Germany), and National Defense Service Medal * had 3 days lost time under Section 6(a), appendix 2b, Manual for Courts-Martial 1951 * was discharged on 10 April 1954 with a characterization of general under honorable conditions by reason of Army Regulation (AR) 615-365 (Convenience of the Government [COFG] – Prior to Expiration of Term of Service [PETS]); and Special Regulation (SR) 615-360-5 (Enlisted Personnel – Special Separation Criteria), section VI (Separation of Overseas Returnees) * was discharged as a Private (PV1) with a date of rank of 23 December 1953 4. His service medical treatment records show: * between 19 November 1950 and 17 May 1951, he was a Private First Class (PFC), Infantry, in Company G, 5th Regimental Combat Team * between 13 December 1951 and 18 December 1952, he received medical treatment at the Medical Detachment 2114-1, US Army Hospital, Camp Pickett, Virginia, wherein these records show him respectively in the rank of PV1 and private two (PV2) * on 21 June 1952 that he was in a brawl and hurt his right hand; "Blackstone" was given as the location of the injury – Blackstone is the civilian town adjacent to Camp Pickett * between 9 March 1953 and February 1954, he was a PV2 in the 7th Chemical Depot Company in Kirshheimbolanden, Germany * on 9 March 1953, he was treated for intoxication and having pushed his right hand through a window pane * his Report of Medical Examination, dated 9 April 1954, given at Medical Processing, Camp Kilmer, New Jersey shows his rank as PV1 5. The available records show no evidence that he has been diagnosed by a behavioral health professional as having PTSD or any related conditions. 6. Section 6(a), Appendix 2b, Manual of Courts-Martial 1951 states: Every Soldier who in an existing or subsequent enlistment deserts the service of the United States, or without proper authority absents himself from his organization, station, or duty for more than one day, or who is confined for more than one day under sentence, or while awaiting trial and disposition of his case, if the trial results in conviction, or through the· intemperate use of drugs or alcoholic liquor, or through disease or injury the result of his own misconduct, renders himself unable for more than one day to perform duty, shall be liable to serve, after his return to a full-duty status, for such period as shall, with the time he may have served prior to such desertion, unauthorized absence, confinement or inability to perform duty, amount to the full term of that part of his enlistment period which he is required to serve with his organization before being furloughed to the Army Reserve. 7. Army Regulation 635-200, paragraph 3-7a, states 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 meets the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization is clearly inappropriate. 8. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 9. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 10. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. DISCUSSION AND CONCLUSIONS: 1. The applicant served in combat in Korea from 19 November 1950 to 17 May 1951 where he was wounded, was awarded the Purple Heart, Combat Infantryman Badge, Korean Service Medal with 4 bronze service stars, and the United Nations Service Medal. 2. The applicant's statement that since discharge from the service he has been a good citizen, husband, and father is acknowledged. 3. The applicant’s records show that during his service he was advanced to the rank of PFC prior to departing from Korea, reduced to a PV1, advanced to a PV2, and reduced again to a PV1. He held the rank of PV1 at his discharge on 10 April 1954. This indicates that he was reduced in rank on at least two occasions during his service. Reduction in rank in the lower enlisted ranks is made as judicial and non-judicial punishment for misconduct. 4. His DD Form 214 shows that he had 3 days lost time under Section 6(a), Appendix 2b, Manual for Courts-Martial 1951, which deals with variety of violations including desertion and absence without leave. 5. The applicant contends he was involved in a minor incident in Germany that resulted in his general under honorable conditions discharge. His records show that he was reduced in rank at least twice with a period of 3 days of time lost under the Manual for Courts-Martial provisions demonstrating multiple instances of misconduct. 6. The Board starts its consideration with a presumption of regularity, that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. Therefore, it is presumed that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reason were therefore appropriate considering all the facts of the case. 7. Counsel suggests the applicant may have had PTSD as a result of his combat service and that this should be considered as a mitigating factor in this case. a. The Secretary of Defense has directed the BCM/NRs to consider PTSD as a mitigating factor when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional. b. In this case, the applicant's service was characterized as general under honorable conditions, and there is no evidence that he has been diagnosed with PTSD or a related condition that may have been present during his military service. In the absence of a diagnosis made by a mental health professional, it would be inappropriate to speculate here on the presence of PTSD or a related condition. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board recognizes the applicant’s combat service and thanks him for his patriotism and good citizenship. However, the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150004674 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006695 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1