MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 April 2002
         DOCKET NUMBER: AR2001064370

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Lee Cates		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Melinda M. Darby		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That the characterization of his service be upgraded from general, under honorable conditions, to honorable.

APPLICANT STATES: That he did not agree with the prejudice of the Army. He asked to be discharged. He just wanted out of the Army after he came back from Vietnam. He served his country faithfully until he got back from Vietnam.

COUNSEL CONTENDS: That his over-all service is more deserving of an honorable discharge. He served in Vietnam for approximately 9 months as an infantryman. He was awarded the Purple Heart and the Combat Infantryman Badge (CIB). His discharge was subsequently up-graded to under honorable conditions by the Army Discharge Review Board (ADRB) in a decision dated 17 June 1978. Further, his discharge is too harsh. He completed 2 years and 6 months of his 3-year enlistment. There is no record of any significant period of absent without leave (AWOL) or court-martial, and his offenses would be considered relatively minor.

EVIDENCE OF RECORD: The applicant's available military records show:

On 4 February 1970, the applicant enlisted in the Army. He completed his required training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

He was advanced to pay grade E-4, effective 7 May 1970.

During the period 11 through 17 September 1970 (7 days), he was AWOL. There is nothing in the available records to indicate disciplinary action taken.

During the period 20 September through 2 November 1970 (44 days), he was AWOL. There is nothing in the available records to indicate disciplinary action taken.

During the period 8 November 1970 through 21 August 1971, he served in a unit in Vietnam.

On 16 June 1971, he was issued nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being in an off-limits area on 29 May 1971. His punishment included forfeiture of 7 days pay and extra duty for 14 days.

On 7 November 1971, he was issued NJP for being AWOL on 3 August 1971 and unlawful possession of drugs. His punishment was reduction to pay grade E-1.

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On 8 June 1972, a mental status evaluation and a physical examination cleared the applicant for separation.

Although the documentation is not in the available records, evidence shows the commander preferred charges against the applicant for (1) disobeying a lawful order from a non-commissioned officer; (2) possession of drug paraphernalia; (3) having live ammunition in his wall locker; and, (4) breaking restriction.

The evidence shows and the applicant contends that he voluntarily requested a discharge for the good of the service to avoid being tried by court-martial under Chapter 10, Army Regulation 635-200.

On 26 July 1972, the applicant was discharged with a characterization of service of undesirable, in pay grade E-1, under conditions other than honorable, under the above-cited regulation. His DD Form 214 (Report of Separation from Active Duty) indicates he had 2 years, 4 months and 2 days of creditable service and 51 days of lost time.

The applicant’s DA Form 20 (Enlisted Qualification Record) shows entitlement to award of the National Defense Service Medal (NDSM), the Parachutist Badge, the CIB, the Vietnam Service Medal (VSM), and the Republic of Vietnam Campaign Medal (RVNCM). These awards are not shown on his DD Form 214.

On 16 June 1975, the ADRB denied his request for a change in the type and nature of his discharge.

On 2 June 1976, this Board determined the applicant presented insufficient evidence to indicate probable material error or injustice and denied his application for upgrade.

On 17 May 1977, the ADRB considered the applicant’s request under the Department of Defense Discharge Review Program (Special) and, in a spirit of compassion, upgraded his undesirable discharge to under honorable conditions with issuance of a General Discharge Certificate, based on Vietnam service. There was not sufficient merit to warrant an honorable discharge.

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

Army Regulation 600-8-22 (Military Awards) prescribes Army policy and procedures concerning awards. Paragraph 8-6 provides for award of the CIB. That paragraph states that there are basically three requirements for award of the CIB. The soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat. Specific requirements state, in effect, that an Army enlisted soldier must have an infantry or special forces specialty, and satisfactorily performed duty while assigned or attached as a member of an infantry, ranger or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat. Eligibility for Special Forces personnel (less the Special Forces medical sergeant) accrues from 20 December 1989. Retroactive awards for Special Forces personnel are not authorized. A recipient must be personally present and under hostile fire while serving in an assigned infantry or Special Forces primary duty, in a unit actively engaged in ground combat with the enemy.

Army Regulation 635-200 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. 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, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor. 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 inappropriate.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems that may have contributed to the acts that led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

This Board operates under the standard of presumption of regularity in governmental affairs. The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper. There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant is not entitled to an upgrade of his general discharge, under honorable conditions, to fully honorable. He has not shown his service met standards of acceptable conduct, or is so meritorious that it would normally be applied to an honorable discharge.

2. Notwithstanding counsel’s contention concerning the Purple Heart, there is no evidence of record available and the applicant has presented none to the Board, which shows that the applicant was wounded or treated for wounds due to hostile action. He is therefore not entitled to award of the Purple Heart.

3. Contrary to counsel’s contention that there is no record of any significant period of AWOL or court-martial, and his offenses would be considered relatively minor, the record shows the applicant had court-martial charges preferred against him which included multiple drug related charges. He was issued NJP on two occasions for being AWOL.

4. The Board notes applicant and counsel contentions of prejudice and harshness; however, he was discharged in accordance with applicable regulations at the time with no indication of improprieties.

5. The Army Review Boards Agency Support Division at St. Louis will be requested to show the applicant’s authorized awards on his DD Form 214.

6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement

7. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE: The Army Review Boards Agency Support Division is requested to show award of the NDSM, the Parachutist Badge, the CIB, the VSM, and the RVNCM on the applicant’s DD Form 214.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_mmd__ _jtm_____ _inw____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001064370
SUFFIX
RECON
DATE BOARDED	20020416
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144
2.
3.
4.
5.
6.