PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 September 2002
         DOCKET NUMBER: AR2001061569


         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. Walter Avery, Jr.		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Melinda M. Darby		Member
Mr. Ronald E. Blakely		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.

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2. The applicant requests, in effect, that the Board affirm the upgrade of his discharge by the Army Discharge Review Board (ADRB) and that he be awarded the Combat Infantryman Badge (CIB).

3. The applicant states, in effect, the upgrade of his undesirable discharge to a general discharge, approved by the ADRB in 1979, requires affirmation by the Army Board for Correction of Military Records for him to qualify for benefits administered by the Department of Veterans Affairs.

4. The applicant’s counsel states that the applicant’s request should be supported. The Disabled American Veterans, as the counsel for the applicant, requests that relief be granted consistent with the evidence available.

5. The applicant’s military records show that on 15 December 1967, he entered active duty for three years and was awarded military occupational specialty (MOS) 11E (Armor Crewman).

6. The applicant’s Enlisted Qualification Record (DA Form 20) reflects that during his tenure in Vietnam, he was awarded the following combat related awards: the Bronze Star Medal for Valor, the Purple Heart, the Army Commendation Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. The CIB is not listed in the block provided for the listing of awards and decorations. The DA Form 20 reflects that while in Vietnam, the applicant served several months in a MOS 11B (Infantryman) duty position. However, there is no entry that reflects that MOS 11B became his primary MOS. The record shows MOS 11E as his primary MOS.

7. On 18 January 1969, the applicant arrived in Vietnam and was assigned to Troop C, 3^rd Squadron, 4^th Cavalry, 25^th Infantry Division. His tour ended on 17 January 1970.

8. The ADRB proceedings indicate the applicant served successfully in Vietnam. He continued to serve successfully after his return to the United States for approximately five months. His behavior then changed and over a period of time he was charged with three absent without leave (AWOL) offenses and accumulating a total of 1,814 days of lost time. The total days of lost time include approximately 141 days of AWOL. It appears the remaining days consist of time he spent in pre-trial confinement, possible military confinement, civil confinement, unknown. As a result of his extensive AWOL periods, the applicant received non-judicial punishments twice and was convicted by special courts-martial on three occasions. At the third court-martial, he was sentenced to a Bad Conduct Discharge (BCD). The US Court of Military Review affirmed the BCD sentence on 14 February 1975.


9. The record also reflects that the applicant returned to military duty at Fort Meade, Maryland from civilian confinement (reason unknown) on 30 January 1976, and departed in an excess leave status the same day. The applicant’s request for Chapter 10 separation is dated 28 January 1976, as is his counsel’s authentication of his request. The applicant’s company and battalion commanders recommended that he receive a General Discharge Certificate. However, the general court-martial authority approved an Undesirable Discharge Certificate. Accordingly, the applicant was discharged on 27 April 1976 with 3 years, 4 months, and 20 days of active military service.

10. The ADRB reviewed the applicant's request and voted to upgrade his discharge to Under Honorable Conditions (General). This decision was based on the fact that he had completed a creditable tour in Vietnam during the period January 1969 to January 1970, during which he had received, the Purple Heart, the Army Commendation Medal, and the Bronze Star Medal for Valor. His heroic act involved rescuing wounded soldiers while under intense hostile fire while he himself was wounded and then placing devastating fire on the advancing enemy. In addition, it was noted that the major acts of indiscipline, excessive AWOL and lost time, began approximately five months after his return from Vietnam. The ADRB accepted the applicant's contention and perception of adjustment problem following service in Vietnam, that his AWOL began five months after his tour in Vietnam and that other than AWOL, he had no other offenses.

11. Subsequent to the ADRB decision, the applicant was issued a new DD Form 214, Report of Separation From Active Duty, that reflects his character of service as Under Honorable Conditions and indicates that he was issued a General Discharge Certificate.

12. The Reserve Components Personnel and Administrative Center notified the applicant that his request for review of his discharge revealed that the discharge was awarded under circumstance that could make him ineligible for Veterans Administrative benefits regardless of any action taken by the ADRB. Specifically, the circumstances were that his discharge was based on more than 180 consecutive days of AWOL time. He was advised to request that this Board be requested to act to change his records to remove the circumstances, which constitute the bar to benefits.

13. Public Law 95-126, states any individual whose catalyst for separation was 180 days or more AWOL is not eligible for veterans benefits even if the discharge is upgraded by ADRB action.




14. 38 Code of Federal Regulation §3.12 states that Department of Veterans Affairs benefits are not payable where the former service member was discharged or released as a result of resignation for the good of the service. Discharges upgraded by the ADRB established under Title 10, United States Code §1553, do not set aside any bar to benefits imposed in this section. However, an honorable discharge or discharge under honorable conditions issued through a board for correction of records established under the authority of Title 10, United States Code §1552, is final and conclusive on the Department of Veterans Affairs. The action of the Board for Correction of Military Records sets aside any prior bar to benefits imposed under this section.

15. 38 Code of Federal Regulation 3.12 (c)(6) and (c)(6)(ii) further provides in paragraph (c)(6), inter alia (among other things), that the bar to entitlements does not apply if there are “compelling circumstances” surrounding the prolonged absence. Paragraph (c)(6)(ii) discusses the factors to be considered in determining whether the circumstances surrounding the absence were compelling. Those factors include age, education, background, and maturity. Additionally, "hardship or suffering incurred during overseas service, or as a result of combat wounds or other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person’s state of mind . . . . "

16. Army Regulation 600-8-22, Military Awards, provides, in pertinent part, that the CIB is awarded to infantry officers, enlisted soldiers, and warrant officers who have an infantry MOS. They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size. The Awards Branch of the Total Army Personnel Command has advised, in similar cases, that during the Vietnam era the CIB was awarded only to enlisted soldiers who held and served in MOS 11B, 11C, 11F, 11G, or 11H. During the Vietnam conflict, award of the CIB was announced in special or unit orders.

17. The same regulation provides that one bronze service star is authorized to be worn on the Vietnam Service Medal for each campaign when assigned for duty with a unit during the period in which it participated in combat, or was under orders to such a unit in a combat zone. The applicant was assigned to Vietnam during a period in which four campaigns took place.

18. Department of the Army Pamphlet 672-3, Unit Citation and Campaign Participation Credit Register, provides that the unit to which the applicant was assigned, Troop C, 3^rd Squadron, 4^th Cavalry was awarded the Valorous Unit Award for the period 1 January through 22 February 1969 per Department of the Army General Order (DAGO) 39, the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 1 January through 31 March 1969 per DAGO 43, and the Republic of Vietnam Civil Actions Honor Medal-First Class Unit Citation for the period 1 August 1967 through 21 January 1970 per DAGO 51.
19. Army Regulation 635-200, Enlisted Personnel, sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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. An honorable discharge may be authorized for members separating under these provisions, although an under other than honorable conditions discharge is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

CONCLUSIONS:

1. Based on an ADRB decision the applicant was issued a new DD Form 214 that reflects his character of service as Under Honorable Conditions and in the Remarks section reflects 1,814 days of lost time; however, the Department of Veterans Affairs will not grant the applicant access to benefits until this Board upgrades the discharge which is then final and conclusive on the Department of Veterans Affairs and effectively sets aside any prior bar to benefits.

2. It is the opinion of the Board that the only way to provide the relief sought by the applicant is to affirm the applicant’s general discharge by adding the entry "Title 10 United States Code, §1552" to the separation authority in item 9c, Authority and Reason, of the applicant’s DD Form 214.

3. After a careful review of the available evidence, and lacking any compelling reasons to the contrary, the Board finds the applicant’s meritorious combat service, as evidenced by his earning the Bronze Star Medal for Valor, the Purple Heart, and the Army Commendation Medal mitigates his military related misconduct sufficiently to warrant an upgrade of his discharge and affirmation of the previous ADRB upgrade decision.

4. Therefore, while not condoning the applicant’s excessive periods of AWOL and lost time, but consistent with the ADRB’s acceptance of applicant’s explanation of his perceived adjustment disorder, applicant’s experiences in multiple combat situations were “compelling circumstances” which, although not rising to the level of a defense, played a significant role in the applicant’s subsequent inability to successfully reintegrate into a garrison environment and contributed to his poor judgment in going AWOL. Therefore, it would be unjust to further deny him entitlement to veteran's benefits.

5. The applicant may have been placed in and temporarily performed duties as an 11B, infantryman. However, there is no evidence of record available to the Board which shows that the applicant was awarded a CIB or one of the infantry MOS’s that would have authorized him the award of the CIB.

6. The governing regulation indicates that the applicant was assigned to a unit during the period it was awarded the Valorous Unit Citation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal-First Class Unit Citation. His service shows that he served in four campaigns during the Vietnam War. Therefore, he is entitled to wear four bronze service stars affixed to his Vietnam Service Medal and to have these awards reflected on his DD Form 214.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

a. issuing to him a DD Form 215 which adds the entry "Title 10 United States Code, §1552" to the separation authority in item 9c, Authority and Reason, of the applicant’s DD Form 214; and

b. showing he was awarded the Valorous Unit Citation, four bronze service stars to be worn on his Vietnam Service Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal-First Class Unit Citation.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__reb___ ___jhl____ ____mmd GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __________Joann H. Langston______
                  CHAIRPERSON

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INDEX

CASE ID	AR2001061569
SUFFIX
RECON
DATE BOARDED	20020919
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.