ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20170012182 APPLICANT REQUESTS: an upgrade of his dishonorable discharge from the Korean War service to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement * Roster of Soldiers, dated 19 February 1951 at Replacement Detachment * 5 Character Statements/Testimonials from his Reverent, spouse and children * A copy of the Medical Advisory completed by the Army Review Board Agency’s physicians FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he received an honorable discharge from his service in Europe during World War II and he was mistakenly listed as missing in action during his second service in Korea. He was unjustly and inaccurately identified as a deserter, while recovering from medically necessary debilitating oral health, dental conditions and surgery, at a MASH unit. 3. The applicant provides: a. A self-authored statement, which states a private who had a roster of the 51 Soldiers that came with them on 19 February 1951 to a little village was able to validate the story of the unit engaging in battle. b. A character statement from the Saint Rose Catholic Church, stating this was a great generation and there are so few of them remaining. c. A character statement from his spouse who has been married to him for 61 plus years and feels he is a great husband, father, grandfather and provider. She never had to work and her husband has been able to support her and the family with a house and a great life. He is an avid race car fan and loves college football, especially Notre Dame. He was a hard worker which allowed their three children to attend college and earn their degrees. d. Character statements from his children, who speaks highly of their father and what a great provider he was. They grew up in a Christian home and their father was good at fixing anything and was able to build a garage for the new house. They were able to attend college and receive their degrees. They feel their father is a hero and role model for their children and they feel it’s time for the military to do right with his upgrade. 4. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 16 October 1945. b. He served in World War II until he was discharged on 15 March 1947 with an honorable discharge, dated 15 March 1947. c. The applicant then enlisted in the United States Army to serve in the Korean War on 19 October 1949. d. On 15 January 1954, at Camp Gordon, GA, he accepted a general court–martial (GCM) for desertion with the intent to avoid hazardous duty. e. On 29 October 1951, the court found him guilty and sentenced him to forfeiture of pay, a dishonorable discharge and confinement for ten years. f. The appellate board of review found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined on the basis of the entire record that they should be approved, such findings of guilty and sentence herby. g. On 19 December 1951, the Department of the Army Office of the Judge Advocate approved his dishonorable discharge, total forfeitures and confinement at hard labor for ten years. h. The sentence was adjudged on 29 October 1951 with the specification of guilty, except the words “with intent to avoid hazardous duty”. The approval authority provides for a dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for ten years. i. The applicant was discharged on 30 January 1952. His DD Form 214 shows he was discharged in the rank/grade of Private/E-1, as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3, with a bad conduct discharge. He completed 1 year, 8 months and 26 days of creditable active military service with 209 days of lost time. j. His DD Form 214 also shows he was awarded or authorized two bronze service stars and an occupational medal (Japan). 5. By regulation (AR 635-200), a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 6. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 7. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case alive in our presence. The church feels many sacrificed and changed their support an upgrade of this proud American to support our country and we need to change his upgrade to honorable. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the evidence showing that the applicant went AWOL to avoid deployment, the Board concluded that the characterization of service received at the time of discharge was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 615-364 (Army Regulation) Enlisted Men when authorized.-a. An enlisted person will be dishonorably discharged pursuant only to an approved sentence of a general court martial or military commission imposing dishonorable discharge. An enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court martial imposing a bad conduct discharge. (As to sentence by special court martial, See MCM 1951, paragraphs 14b, 15b and 127). Effect upon unexpired enlistments.-Dishonorable and bad conduct discharges effect evulsion from the Army, and cover all unexpired enlistments. 3. Form of discharge certificate to be given.-An enlisted person dishonorably discharged will be given a certificate of Dishonorable Discharge (WD AGO Form 53-57). An enlisted person discharged with a bad conduct discharge will be given a certificate of Bad Conduct Discharge. 4. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 5. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: • An applicant's candor • Severity of misconduct • Length of time since misconduct • Acceptance of responsibility, remorse, or atonement for misconduct • The degree to which the requested relief is necessary for the applicant • Character and reputation of applicant • Meritorious service in government or other endeavors • Evidence of rehabilitation and job history • Availability of other remedies • Whether misconduct may have been youthful indiscretion • Character references ABCMR Record of Proceedings (cont) AR20170012182 6 1