PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 December 2002
         DOCKET NUMBER: AR2002072980


         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Charmane Collins		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 that the phrase "Drug Abuse" be deleted from Item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and that his DD Form 214 be corrected to show all awards and citations earned, including four bronze service stars (BSS) in lieu of one silver service star, and the Vietnam Gallantry Cross (sic).

3. The applicant states that during the former President Jimmy Carter's administration, his discharge was upgraded to an honorable discharge (HD) due to a civil action in "Giles v. Secretary of the Army."

4. The applicant’s military records show that, on 3 August 1969, he enlisted in the Regular Army for 3 years. He completed basic combat training and advanced individual training and he was awarded military occupational specialty (MOS) 64C (Motor Transport Operator). On 18 December 1969, he was assigned to the 444th Transportation Company in Vietnam.

5. On 1 October 1970, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for violating a lawful general regulation by being in an off limits area and for having in his possession twenty-six hand rolled cigarettes containing marihuana on 10 September 1970. His punishment included forfeiture of $90.00 pay per month for 2 months and reduction from pay grade E-4 to pay grade E-3.

6. On 19 November 1970, the applicant returned to the United States and he was assigned to Fort Sill, Oklahoma. There is no recorded evidence of any indiscipline while he was assigned to Fort Sill.

7. On 29 July 1971, the applicant returned to Vietnam. On 13 August 1971, he was assigned to the 261st Transportation Company. Between August 1971 and November 1971, he was counseled numerous times concerning drug use/abuse.

8. On 10 November 1971, the applicant was administered a drug urinalysis test and his urine specimen tested positive for heroin. As a result of the positive urinalysis specimen, he was admitted to the Drug Treatment Center for detoxification/treatment during the period 19-25 November 1971. On 10 December 1971 during a follow-up drug urinalysis test, his urine specimen again tested positive.

9. On 14 December 1971, the applicant's commander recommend that he be separated prior to the expiration of his term of service under the provisions of Army Regulation 635-212, due to unfitness, with an undesirable discharge (UD). He cited as the reason for the recommendation the applicant's unsatisfactory

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conduct rating, his unsatisfactory efficiency rating, and two positive urinalysis specimens. He also stated that since the applicant had failed to respond to counseling or treatment, it was felt that he would be of little value to the Army and that further attempts at rehabilitation would not be fruitful.

10. On 16 December 1971, the applicant's commander indicated in a sworn statement that since being assigned to the unit in August 1971, the applicant consistently demonstrated a poor attitude; that he performed his duties in a substandard manner and often reported to his designated place of duty late; that despite drug treatment and drug-counseling sessions, he continued to abuse drugs and that the applicant admitted that he tested positive so that he could get out of the Army.

11. On 28 December 1971, the applicant was assigned to the United States Army Drug Abuser Holding Center, Vietnam (USADAHCV) for drug rehabilitation.

12. On 29 December 1971, a mental status evaluation determined that the applicant was free from mental disease; he was mentally responsible; able to distinguish right from wrong and to adhere to the right; and he possessed the mental capacity to understand and participate in his own defense.

13. On 31 December 1971, the commander at the USADAHCV recommended that the applicant be separated prior to the expiration of his term of service under the provisions of Army Regulation 635-212, due to unfitness - drug abuse, with a general discharge (GD). He also recommended that further rehabilitative efforts be waived. He cited as the reason for the recommendation the applicant's abuse of drugs.

14. On the same date, the applicant authenticated a statement in which he acknowledged that he had consulted with legal counsel and he acknowledged that he had been advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-212, for unfitness - drug abuse. He further acknowledged that he understood the effects of a GD, and that he understood the ramifications of receiving a GD. He also waived further representation by legal counsel and a personal appearance before a board of officers. He did not submit a statement in his own behalf.

15. On 8 January 1972, competent authority waived further rehabilitation, approved the recommendation, and directed that the applicant be separated under the provisions of Army Regulation 635-212, for unfitness - drug abuse with a GD. On 13 January 1972, he was assigned to Fort Bragg, North Carolina, for further separation processing.

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16. On 18 February 1972, the applicant was discharged under the provisions of Army Regulation 635-212, for "unfitness - drug abuse" with a GD. He had completed 2 years, 5 months and 28 days of active military service.

17. The applicant's DD Form 214 shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal (VSM), the Vietnam Campaign Medal, three overseas service bars, and the Expert Marksmanship Qualification Badge with Rifle Bar.

18. On 4 November 1980, the Army voided the GD that the applicant was issued for his period of service from 3 March 1969-18 February 1972 and issued him an HD, for "unfitness - drug abuse" for the same dates. The applicant's discharge was upgraded in accordance with the 27 November 1979 order of the U.S. District Court for the District of Columbia in "Giles v. Secretary of the Army."

19. The applicant participated in the following Vietnam campaigns: Vietnam Winter-Spring 1970, DA Sanctuary Counteroffensive, Vietnam Counteroffensive Phase VII, Consolidation I, and Consolidation II.

20. On 14 August 1984, a DA Form 1577 (Authorization for Issuance of Awards) shows that the Reserve Components Personnel & Administration Center, St. Louis, Missouri, issued the applicant those awards that are shown on his DD Form 214. He was also issued the MUC and the silver service star in lieu of five BSS's. He was advised that overseas service bars are not items of issue to separated personnel by the Department of the Army, but he could purchase them from a civilian dealer in military insignia. He was also advised that he was authorized wear of the Republic of Vietnam Gallantry Cross with Gold Star Unit Citation and that it was a foreign award that was also not issued by the Army, but that it could also be purchased from a civilian dealer.

21. The applicant's official military personnel file does not contain a DD Form 215 (Correction to DD Form 214) to show award of the MUC, the silver service star for wear on his VSM, and the Republic of Vietnam Gallantry Cross with Gold Star Unit Citation.

22. Army Regulation 15-185, governs the operations of the Board. Paragraph
4-1 states that pursuant to the 27 November 1979 order of the U.S. District Court for the District of Columbia in "Giles v. Secretary of the Army," a former Army service member is entitled to an HD if less than an HD was issued in an administrative proceeding in which the Army introduced evidence developed as a direct or indirect result of compelled urinalysis testing for the purpose of identifying drug abusers (either for the purposes of entry into a treatment program or to monitor progress through rehabilitation or follow-up).

23. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam. This document shows the unit to which the applicant was assigned was cited for award of the MUC for the period 1 May 1969 to 31 March 1970 by Department of the Army General Order (DAGO) Number 48, dated 1971. It also shows that his unit was awarded the Republic of Vietnam Gallantry Cross with Gold Star Unit Citation for the period 19 October 1966 to 24 April 1971 by DAGO Number 27, dated 1972.

24. Army Regulation 600-8-22 also provides, in pertinent part, that the silver service star is worn instead of five BSS's. A BSS is awarded, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that an authorized BSS will be worn on the appropriate service medal.

25. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel and provided, in pertinent part, that members involved in the unauthorized use or possession of habit forming narcotic drugs or marijuana were subject to separation for "unfitness, drug abuse." A UD was normally considered appropriate.

CONCLUSIONS:

1. The Board noted that the applicant's urinalysis was ordered as a result of identifying him for entry into a drug treatment program and a second urinalysis was ordered to follow-up or monitor his progress. In 1972, he was separated with a GD and in November 1980; the characterization of his service was upgraded to an HD as a result of "Giles v. Secretary of the Army" based upon the use of limited use information during the separation process.

2. The applicant's narrative reason for separation appropriately remained unchanged. Upon enrollment in a drug treatment program, he would have acknowledged that he had been informed and that he understood the requirement to abstain from the use of illegal drugs. He disobeyed a lawful order when he continued to abuse drugs and he violated the Army's drug abuse policy as evidenced by the follow-up positive urinalysis. Therefore, the narrative reason for separation is fully supported by the record.

3. The applicant should be issued a DD Form 215 to show award of the MUC, the Republic of Vietnam Gallantry Cross with Gold Star Unit Citation, and the silver service star for wear on the VSM to distinguish that he served in five Vietnam campaigns.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by issuing to the individual concerned a DD Form 215 to show award of the MUC; the Republic of Vietnam Gallantry Cross with Gold Star Unit Citation, and a silver service star for his VSM.

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

BOARD VOTE:

__fne___ __jea___ __cc____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Fred N. Eichorn
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002072980
SUFFIX
RECON
DATE BOARDED	20021203
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19720218
DISCHARGE AUTHORITY	AR 635-212. . . . .
DISCHARGE REASON	A53.00
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	144.5300
2.	107.0034
3.	107.0073
4.	107.0094
5.
6.