BOARD DATE: 31 August 2010 DOCKET NUMBER: AR20100009322 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 and that he be awarded all service ribbons and awards associated with his service in the Republic of Vietnam (RVN). 2. The applicant states he believes he has made up any lost time for his absence without leave (AWOL) status. He completed a total of 11 months and 24 days in Vietnam and contends he completed two years and close to two months of active service in order to make up time loss. 3. He states as of the year 2009, he is 62 years old and semiretired, but still operates his painting and construction company on a limited basis. He worked for 25 years in the aerospace and aircraft manufacturing industries as a tool-maker and general machinist. He was on the team which built the first prototype for the AH-64 Apache Attack Helicopter for the U.S. Army, and he was on the team which built the first prototype for the B2 Stealth Bomber for the U.S. Air Force. He also holds a Secret Security Clearance from the Department of Defense. 4. For the past 10 years he has been a self-employed licensed contractor with the state of California. He has been married for more than 30 years and has three grown children and three grandchildren. His home of 25 years will be paid for in 4 years and he always pays his taxes. He states he always finds time to stay in physical shape. His son and his brother are well-known and proficient martial artists. 5. He and his wife are members of a Christian Church and he makes donations of offerings, services, and good will items for the homeless and low-income programs. He states he has never discussed his military discharge with anyone except the Department of Veterans Affairs (VA) counselor. He is proud to have served in the U.S. Army but not proud of the mistakes he made while he was in. 6. The applicant provides the following: * A copy of a Social Security Benefit Statement * A copy of document depicting a California driver license and contractor license * Three letters of reference * A copy of a certificate of achievement * A copy of his contractor license * Several photographs 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 limitations for timely filing. 2. A copy of a DA Form 2981 (Application for Determination of Moral Eligibility for Induction) dated 1 May 1969 shows the applicant was approved for induction based on alleged charges. Nowhere on this form does it indicate that the applicant may have a possible drug addiction. A copy of the applicant's Standard Form 88 (Report of Medical Examination) at the time of his induction is not available for review. 3. The applicant's records show he was inducted in the Army on 8 July 1969 and processed through the Armed Forces Examining and Entrance Station (AFEES), Los Angeles, California on 8 July 1969. His DD Form 47 (Record of Induction) shows he was granted a moral waiver for offenses involving narcotics and stolen goods. This form also shows in section II (Local Board Medical Interview) that the applicant was deaf in his right ear and had a permanent disability to his left wrist. 4. A copy of his DA Form 20 (Enlisted Qualification Record) shows in item 38 (Record of Assignments) three periods of AWOL from 31 July 1969 through 26 August 1969. Upon return to military control, he completed basic combat and advanced individual training and was awarded military occupational specialty 64A (Light Vehicle Driver). 5. Special Court-Martial (SPCM) Order Number 122, issued by Headquarters, Third Basic Combat Training Brigade, dated 16 October 1969, indicates the applicant was charged with three specifications under the Uniform Code of Military Justice (UCMJ) for violating Article 86: * On or about 31 July 1969, absent himself from his unit and did remain so until on or about 1 August 1969 * On or about 5 August 1969, absent himself from his unit and did remain so until on or about 20 August 1969 * On or about 23 August 1969, absent himself from his unit and did remain so until on or about 27 August 1969 6. On 8 September 1969, the applicant pleaded guilty to all three specifications and was sentenced to be confined at hard labor for 60 days and to forfeit $50.00 pay per month for 3 months. The convening authority suspended the portion of the sentence pertaining to confinement for 120 days. 7. Summary Court Martial Order Number 30, dated 9 April 1970, issued by Headquarters, General Support Group, indicates the applicant was charged with another specification of violating Article 86 of the UCMJ for absenting himself from his unit on or about 3 March 1970 and remaining so until on or about 19 March 1970. The applicant pleaded guilty. He was sentenced to be confined at hard labor for 30 days, reduction to private/E-1, and forfeiture of $82.00 pay per month for one month. The convening authority approved the sentence and ordered it executed. 8. A copy of a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 14 May 1970, shows that on 19 March 1970 the applicant admitted to taking two needles of heroin shortly before returning to his unit after a period of AWOL. He checked into an Army hospital at approximately 2300 hours that same night. He was diagnosed as having ill effects resulting from improper drug use. The findings were "not in the line of duty-due to own misconduct." The applicant's medical records are not available for review. 9. Item 38 of his DA Form 20 shows he was assigned to the 630th Engineer Company, in Vietnam during the period 1 September 1970 through 24 August 1971. He received all "excellent" conduct and efficiency ratings through 9 May 1971. He received ratings of "unsatisfactory" for the period 10 May 1971 through 2 August 1971. The facts and circumstances behind this rating are not known. However, a copy of a DA Form 268 (Report for Suspension of Favorable Personnel Actions) shows that on 30 May 1971 a reinvestigation for elimination was initiated. The remainder of this form is blank with the exception of section IV (Authentication), which was signed by his company commander. 10. His DA Form 20 shows he departed Vietnam on 24 August 1971 and was placed in a "patient" status on 28 August 1971. The last entry is an Undesirable Discharge, dated 3 September 1971. 11. A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) he was awarded the National Defense Service Medal, the Vietnam Service Medal, the RVN Campaign Medal with Device (1960), and the Expert Marksmanship Qualification Badge with Rifle Bar. The applicant's record documents no acts of valor or significant service warranting special recognition. 12. The facts and the circumstances surrounding the applicant's discharge are not contained in the available records. However, his DD Form 214 shows that on 3 September 1971 he was discharged under the provisions of Army Regulation 635-212, (Discharge Unfitness and Unsuitability) and was issued an Undesirable Discharge certificate. He completed 2 years of net active service, with 11 months and 24 days of foreign service in Vietnam. He had a total of 56 days of lost time due to AWOL. 13. The applicant's records show he applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge and, on 19 November 1973, the ADRB denied the applicant's request. 14. On 31 January 1978, the applicant was notified by the Office of the Adjutant General and the Adjutant General Center, Washington, D.C. that his application for upgrade of his discharge under the Department of Defense (DoD)-Special Discharge Review Program (SDRP) was considered by the ADRB and was approved on 2 January 1978. 15. On 9 May 1978, the applicant was notified by the ADRB that the previous upgrading of his discharge had been re-reviewed as required by Public Law 95-126. The ADRB affirmed his DoD-SDRP discharge upgrade under the new uniform standards for discharge review. 16. On 20 June 1978, the applicant was issued a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) which stated his discharge was reviewed in accordance with Public Law 95-126 and a determination made to change his character of service. As a result, a new DD Form 214 was issued which showed his discharge Under Other Than Honorable Conditions was changed to General, Under Honorable Conditions. Item 9c (Authority and Reason) was listed as chapter 16 (should have read chapter 14) of Army Regulation 635-200 (Personnel Separations –Enlisted Personnel). 17. On 3 February 1981, the applicant was notified by the Office of the Adjutant General and the Adjutant General Center, Washington, D.C. that the U.S. District Court for the District of Columbia issued an order which required the Army to screen records and identify individuals separated for drug abuse. The review of the applicant's case did not reveal any evidence of compelled urinalysis involved in his separation. He was advised he could request a full discharge review. 18. At the applicant's request, on 2 June 1982, the ADRB reviewed his case and directed the reason and authority for his discharge be changed to "Alcohol or other Drug Abuse, Army Regulation 635-200. The applicant's request for upgrade of his discharge to honorable was denied. As a result, on 15 June 1982, a second DD Form 215 was issued which amended item 9c to read "Chapter 9 of Army Regulation 635-200" and added to item 27 (Remarks) "Alcohol or other drug abuse (exemption policy)." 19. The applicant has provided documents in support of his request. A copy of the certificate of achievement depicts he successfully completed a two-year "general machinist" apprenticeship training program with Hughes Helicopters, Inc. on 18 July 1978. Copies of his reference letters show he was an excellent worker who was always conscientious about his job. His job knowledge and interpersonal skills were also excellent. A few of his photographs depict him in a positive working environment. Some of these pictures also show his devotion to his family and his advancements in the martial arts. 20. A review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214. 21. Army Regulation 600-8-22 (Military Awards) states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973. Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations. A bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. 22. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards and campaign periods for the Vietnam era. Two designated campaigns coincide with the applicant's period of service in the RVN: * Vietnam Counteroffensive, Phase VII (1 July 1970 – 30 June 1971) * Consolidation I (1 July 1971 – 30 November 1971) 23. Army Regulation 600-8-22 states a bronze service star is awarded for each campaign listed in appendix B. Authorized bronze service stars will be worn on the appropriate service medal. 24. Department of the Army Pamphlet 672-3 shows that during the applicant's assignment to the 630th Engineer Company his unit was awarded the RVN Civil Actions Honor Medal First Class Unit Citation (3 May 1970 – 30 April 1971) by Department of the Army General Orders (DAGO) 6, 1974. 25. DAGO Number 8, dated 1974, announced award of the Republic of Vietnam (RVN) Gallantry Cross with Palm Unit Citation for service in the RVN to Headquarters, U.S. Army Vietnam, and its subordinate units during the period 20 July 1965 to 28 March 1973. 26. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; in pertinent part, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 27. On 28 September 1971, Public Law (PL) 92-129 mandated that the Secretary of Defense develop programs for the identification, treatment, and rehabilitation of alcohol or other drug dependent persons in the Armed Forces. As a result, Army Regulation 600-85 which prescribes policies and procedures needed to implement, operate, and evaluate the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) was established. Paragraph 3-2 of Army Regulation 600-85 pertains to voluntary (self) identification. It states, in pertinent part, that this is the most desirable method of discovering alcohol or other drug abuse. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek treatment and rehabilitation. 28. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. 29. Army Regulation 635-200, paragraph 3-7a, provides that 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 has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  30. On 4 April 1977, the Department of Defense (DOD) directed the Services to review all former service members' records who received Undesirable Discharges or General Discharges between 4 August 1964 and 28 March 1973. This program, known as the SDRP indicated that individuals who received an Undesirable Discharge during the RVN era would have their discharges upgraded if they met one of the following criteria: wounded in combat in the RVN; received a military decoration, other than a service medal; successfully completed an assignment in Southeast (SE) Asia or in the Western Pacific in support of operations in SE Asia; completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974; or received an honorable discharge from a previous tour of military service. 31. The SDRP also provided secondary criteria that allowed the ADRB to upgrade a discharge if the board believed such upgrading was appropriate based on all the circumstances of a particular case, and on the quality of civilian record made since discharge. Factors to be considered included: age, general aptitude, and length of service at time of discharge; education level at time of discharge; entered service from a deprived background; possible personal distress which could have contributed to the acts that led to discharge; entered military with waiver of normally applicable standards; actions that led to discharge alleged at the time to have been motivated by conscience; was discharged for abuse of drugs or alcohol and, if so, any contributing or extenuating circumstances; and record of good citizenship since discharge. 32. On 8 October 1977, Public Law 95-126 required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions. It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards. On 29 March 1978, these newly established uniform discharge review standards were published in DOD Directive Number 1332-28. DISCUSSION AND CONCLUSIONS: 1. The applicant's request that his General Discharge be upgraded to an Honorable Discharge and that he be awarded all service ribbons and awards associated with his service in Vietnam was carefully considered is partially supported by the evidence. 2. His records contain one conviction by special court-martial and one conviction by summary court-martial which took place prior to his deployment and service in Vietnam. His record shows he spent an additional 56 days beyond his scheduled two year commitment. This time spent made up for the 56 days lost time preceding his deployment to Vietnam. 3. The applicant's record verifies that this Undesirable Discharge was upgraded to a General Discharge and was affirmed on 9 May 1978 by the ADRB. 4. Under the mandate of PL 92-129, the applicant requested a reconsideration of his case to upgrade his General Discharge to an Honorable Discharge. The ADRB reviewed his case and directed the reason and authority for his discharged be changed to "Alcohol or other Drug Abuse, Army Regulation 635-200. However, his request for upgrade of his discharge was denied. 5. The applicant's post-service achievement, sense of community and trustworthiness were considered; however, based on his military record which includes two courts-martial and military confinement, the applicant's service does not meet the standards of acceptable conduct and performance of duty for an Honorable Discharge. The fact that the ADRB granted the applicant an upgrade of his Undesirable Discharge to a General, Under Honorable Conditions, and that this upgraded discharge was affirmed is fully sufficient. In view of these facts, there is no reason to grant a further upgrade. 6. General orders awarded the applicant's unit the RVN Gallantry Cross with Palm Unit Citation which is not shown on his records. He is entitled to correction of his records to show this unit award. 7. DAGO 6 awarded the 630th Engineer Company the RVN Civil Actions Honor Medal First Class Unit Citation. He is entitled to correction of his records to show this unit award. 8. The applicant was awarded the Vietnam Service Medal. His records show he participated in two campaigns while serving in the RVN. Therefore, he is entitled to two bronze service stars for wear on his already-awarded Vietnam Service Medal. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ___x_____ ___x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. deleting from item 26 of his DD Form 214 for the period ending 3 September 1971 the Vietnam Service Medal and b. adding to item 26 of his DD Form 214 for the period ending 3 September 1971 the following awards: * RVN Gallantry Cross with Palm Unit Citation * Vietnam Service Medal with two bronze service stars * RVN Civil Actions Honor Medal First Class Unit Citation 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the upgrade of his General Discharge to an Honorable Discharge. _______ _ 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) AR20100009322 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS