IN THE CASE OF: BOARD DATE: 25 January 2011 DOCKET NUMBER: AR20100019066 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, through his Member of Congress: a. An upgrade of his undesirable discharge to a fully honorable discharge. b. Correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Bronze Star Medal with "V" Device and the Air Medal. 2. The applicant states, in effect, he believes the officers over him reasonably characterized his service; however, he needs his discharge upgraded so that he may be eligible for Department of Veteran Affairs (VA) benefits for disabilities incurred on active duty. He states he was discharged due to drinking and incarceration. His drinking was a result of his mental condition which was in turn a result of his combat service. He has dealt with this problem since he served in Vietnam. He does not fault the discharge recommendation as his mental condition was not considered in the proceedings. He underwent a mental evaluation which determined he was a paranoid schizophrenic. He did not have this problem or any other problems prior to serving in the military. He was ultimately discharged due to being absent without leave (AWOL) and subsequent incarceration. The basis of this problem was his mental condition. 3. The applicant provides: * Missouri State Alcohol Traffic Offender's Program (SATOP) Completion Certificate * Medical doctor's statement * Criminal History Record * An endorsement to his discharge action * Letter from the National Personnel Records Center * Letter to his Member of Congress * VA Form 21-21-4138 (Statement in Support of Claim) * Statement from his spouse * General orders awarding him the Bronze Star Medal with "V" Device and the Air Medal 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. The applicant's records show he enlisted in the Regular Army (RA) for a period of 3 years on 13 July 1967 and he held military occupational specialty 11B (Light Weapons Infantryman). 3. He served in the Republic of Vietnam for a period of 1 year and 2 days from about January 1968 to about January 1969. He was assigned to Company D, 5th Battalion, 7th Cavalry. 4. On 21 August 1968, Headquarters, 1st Cavalry Division, published General Orders Number 11034 awarding him the Bronze Star Medal with "V" Device for heroism on 25 April 1968. 5. On 29 January 1969, Headquarters, 1st Cavalry Division, published General Orders Number 1161 awarding him the Air Medal for meritorious achievement from January to August 1968. 6. Subsequent to completing his Vietnam tour, he was reassigned to Fort Polk, LA. While at Fort Polk, his records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows: * On 9 April 1969, for being drunk and disorderly * On 4 June 1969, for being drunk and disorderly * On 8 September 1969, for absenting himself from his appointed place of duty 7. He was honorably discharged on 8 September 1969 for the purpose of immediate reenlistment in the RA. The DD Form 214 he was issued shows he completed 2 years, 1 month, and 25 days of creditable active service. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this form shows the: * National Defense Service Medal * Combat Infantryman Badge * Vietnam Service Medal * Vietnam Campaign Medal * Two Overseas Service Bars 8. His records show he executed a 6-year reenlistment in the RA at Fort Polk, LA, on 9 September 1969. 9. His records also show he was reported in an AWOL status on 30 October 1969 and he appears to have returned to military control at Fort Ord, CA, on 14 October 1970. 10. Headquarters, U.S. Army Training Center, Fort Ord, Orders Number 294, dated 21 October 1970, show the applicant was returned to military control from an AWOL status, he had been dropped from the rolls of his organization, and he was assigned to the Special Processing Detachment, Fort Ord, effective 15 October 1970. 11. On 2 November 1970, he underwent a psychiatric evaluation at the U.S. Army Medical Department, Fort Ord, CA. The military psychiatrist indicated the applicant was diagnosed with an immature (dependent type) personality with schizoid features and a history of chronic alcoholism. He had a history of marked social inadaptability prior to and during his military service. Additionally: a. His condition was part of a character and behavior disorder due to deficiencies in emotional and personality development of such a degree as to seriously impair his function in military service. b. He had no mental disease, defect, or derangement sufficient to warrant medical disposition under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). c. He was capable of distinguishing right from wrong and to adhere to the right; he was responsible for his actions and possessed the mental and emotional capacity to understand in and participate in board or other legal proceedings. 12. On 24 November 1970, he underwent a separation physical at Fort Ord. He was noted to be in good health. 13. On 14 January 1971, his immediate commander submitted a statement concerning that applicant's conduct and efficiency ratings. He indicated the applicant's conduct and efficiency ratings were unsatisfactory and recommended that the applicant be discharged from the Army. 14. On 18 January 1970, the applicant submitted a statement of medical condition wherein he stated he underwent a separation physical and that there had been no change in his medical condition. 15. The complete facts and circumstances of the applicant's discharge are not available for review with this case. However, his record contains the following documents: a. An endorsement, dated 14 December 1970, wherein his immediate commander stated the applicant had two prior NJPs for being drunk and disorderly and another for being AWOL. He also had a Bronze Star Medal and an Air Medal. In view of his past conduct, an undesirable discharge was in the best interest of the applicant and the Army. He recommended an Undesirable Discharge Certificate. b. A properly-constituted DD Form 214 that shows he was discharged on 4 April 1973 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a Undesirable Discharge Certificate. He had completed a total of 2 months and 10 days of creditable active service during this period of service and he had 425 days of lost time. 16. Item 24 of this DD Form 214 shows he was awarded the National Defense Service Medal. 17. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation. 18. He submitted the following documents: a. A SATOP completion certificate, dated 5 February 2009, showing he completed a State adult clinical intervention program. b. A medical doctor's statement, dated 13 April 2010, showing he is a patient at a clinic in Missouri for various ailments and a listing of the medications he is currently taking. c. A State summary of criminal history, dated 25 October 1990, that shows his various civil and criminal charges and their disposition from February 1969 to April 1974. d. A letter, dated 22 April 2010, from the National Personnel Records Center listing his authorized awards. e. A letter, dated 6 May 2010, to his Member of Congress wherein he contends that his drinking and imprisonment caused him to be AWOL and ultimately led to his undesirable discharge. f. An undated/unsigned VA Form 21-4138 wherein he chronicled his military service and requested VA benefits. g. A statement, dated 26 January 1994, from his spouse who describes the applicant's mental conditions subsequent to his return from Vietnam. 19. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate. However, at the time that the applicant was discharged an undesirable discharge was appropriate: a. 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. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 20. Appendix B of Army Regulation 600-8-22 shows the applicant participated in at least four campaigns during his service in Vietnam: TET Counteroffensive (30 January to 1 April 1968), Vietnam Counteroffensive, Phase IV (2 April to 30 June 1968), Vietnam Counteroffensive, Phase V (1 July to 1 November 1968), and Vietnam Counteroffensive, Phase VI (2 November 1968 to 22 February 1969). This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. 21. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during his assignment to the 5th Battalion, 7th Cavalry, this unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his undesirable discharge should be upgraded and his DD Form 214 should be corrected to show the Bronze Star Medal with "V" Device and the Air Medal. 2. General orders awarded the applicant the Bronze Star Medal with "V" Device and the Air Medal which are not shown on his DD Form 214 for the period ending on 8 September 1969; therefore, he is entitled to correction of his DD Form 214 to show both awards. 3. The evidence of record shows he was awarded the Vietnam Service Medal. Additionally, records show he participated in at least four campaigns while serving in the Republic of Vietnam. Therefore, he is entitled to award of four bronze service stars to be affixed to the Vietnam Service Medal. 4. General orders awarded his unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his DD Form 214. Therefore, he is entitled to correction of his DD Form 214 to show these unit awards. 5. The applicant's record is void of the facts and circumstances that led to his discharge. However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 18 January 1971 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial with an Undesirable Discharge Certificate. 6. The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The applicant provided no information that would indicate the contrary. Further, it is presumed that the applicant's discharge accurately reflects his overall record of service. 7. The applicant underwent a mental evaluation at Fort Ord subsequent to his return from being AWOL. The military psychiatrist noted his immature personality and history of chronic alcoholism. The military psychiatrist also indicated the applicant had a history of marked social inadaptability prior to and during his military service. However, nowhere in his records does it show that his chronic alcoholism was caused by his military service or that it led to his mental instability or that it caused him to go AWOL. 8. The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits. Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to either a general or an honorable discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___X____ ___X____ ___X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined 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 adding to his DD Form 214 for the period ending on 8 September 1969 the: * Bronze Star Medal with "V" Device * Air Medal * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation * Four bronze service stars to be affixed to his already-awarded Vietnam Service Medal 2. The Board further determined 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 an upgrade of his 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) AR20100019066 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100019066 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1