PROCEEDINGS


         IN THE CASE OF:
                                   
        

         BOARD DATE: 19 August 2003
         DOCKET NUMBER: AR2002076185


         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. John T. Meixell		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 reason for his discharge be changed and that his DD Form 214 (Report of Separation) be corrected by changing his last duty assignment and by listing his secondary military occupational specialty (MOS), accrued leave, and security clearance and awards.

3. The applicant states, in effect, that although he is grateful that the Army Discharge Review Board changed his discharge to honorable, he believes that the reason (unsuitability) used to discharge him with a general discharge is not consistent with his re-characterized discharge. He was separated on temporary records which accounts for the errors on his DD Form 214. He states that his secondary MOS as a military policeman should be shown and that item 22 (Accrued Leave) is wrong. He also believes that he is entitled to a second award of the Army of Occupation Medal, the Armed Forces Expeditionary Medal and the Good Conduct Medal, the National Defense Service Medal and the Expert Infantryman Badge. He also considers his current DD Form 214 is in error because it shows no accrued leave and 13 days excess leave.

4. He relates that he is now retired as both an Army Reservist and as a Department of Defense civilian. Although he served his country for 37 years, including during the Arabian Gulf War as a civilian with the Air Force, 36^th Tactical Wing, it was never easy to explain his discharge to his various supervisors. To substantiate his request he submits the approval letter for his application for Reserve Retired Pay; his retirement certificate for the Army of the United States; the certificate for an Army Commendation Medal for the period 1979 to 1989; a Certificate of Civil Service Retirement showing that, between August 1971 and 31 December 1994 he was continuously employed as a Civil Service employee by the Department of the Army, the Department of the Air Force or the Defense Logistics Agency. A 31 December 1994 Office of Personnel Management (OPM) Notification Personnel Action shows he retired from Federal Civil Service.

5. The applicant’s military records show that he enlisted on 12 April 1957. Despite a nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice and referral for a neuro-psychiatric evaluation (NPE) during the second week of basic training, he completed training in MOS 951.10 as a military policeman. He served in Germany and was discharged as a specialist (E-4) on 24 September 1959 to immediately reenlist. His DD Form 214 (Report of Transfer or Discharge) lists his authorized awards as the Army of Occupation Medal for Berlin, the Sharpshooter Qualification Badge with Carbine and Pistol Bars and the Marksman Qualification Badge with Rifle Bar.

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6. On 21 August 1959 he married a German national. The applicant returned to the United States and was promoted to sergeant (E-5) as an MP in MOS 951.60. The applicant was discharged at the expiration of his term of service (ETS) and reenlisted again on 26 September 1962 in pay grade E-4 for retraining as an aviation mechanic. His DD Form 214 for this second enlistment shows that his authorized awards were the Army of Occupation Medal for Berlin, the Expert Qualification Badge with Carbine Bar, the Sharpshooter Qualification Badge with Pistol and Missile Bars and the Marksman Qualification Badge with Rifle Bar.

7. His record contains a security clearance source document showing that on 28 November 1960 he was granted a secret clearance based upon a National Security Agency check completed 17 November 1960.

8. He returned to Germany on 12 March 1963 for duty as an infantryman with C Company 3^rd Battle Group, 6^th Infantry, Berlin Brigade. He was promoted to sergeant (E-5) as an infantryman on 10 July 1963 and transferred to C Company, 4^th Battalion, 18^th Infantry on 23 September 1963. Between May 1964 and July 1965, the applicant received five nonjudicial punishments (NJPs) under Article 15, Uniform Code of Military Justice for offenses of driving violations, absence from his appointed place of duty, disrespect, disorderly conduct and absence without leave. The fifth NJP resulted in reduction to corporal (E-4). Following a rehabilitative transfer to B Company, 2^nd Battalion, 6^th Infantry Regiment, Berlin Brigade, a sixth NJP for driving without a license resulted in his reduction to private first class (E-3).

9. A 3 November 1965 NPE produced a finding of "No psychiatric diagnosis", but the psychiatrist noted that the applicant demonstrated sociopathic character traits and recommended that he be separated under Army Regulation 635-209. The company commander recommended elimination for unsuitability, cited the NPE report, attached a record of the applicant's NJPs and narrative statements from the chain of command. The recommendation, NPE and the statements describe marital difficulties, in which both parties accused the other of infidelity. There were accusations of abuse and non-support and discussions of separation and pending divorce. The applicant had financial difficulties, seemed to care more about his car than anything else and was given to emotional outbursts and blamed everyone but himself for his problems. His conduct and efficiency were both rated as unsatisfactory.

10. The applicant consulted with counsel and waived his attendant rights, including the right to appear with counsel before a board of officers. The separation authority approved the recommendation to separate the applicant, and directed that a general discharge be issued. Neither the commander's recommendation nor the separation authority's directive specified any specific reason for the discharge.

11. The applicant was separated on 23 November 1965 and assigned separation program number (SPN) codes of 264 and 46A. The applicant's DD Form 214 shows that he had 8 years, 7 months and 10 days of total service. His authorized awards were listed as the Expert Qualification Badge with Rifle (M-14) Bar. Block 22 (Days Accrued Leave Paid) states "NONE" and block 27 (Remarks) states, in pertinent part "EXCESS LEAVE OF 13 DAYS…."

12. The entry in item 24 (Security Clearance) of his DA Form 20 (Enlisted Qualification Record) has been lined out indicating that his clearance had been revoked.

13. Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude,
character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when
psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available. A general or honorable discharge was considered appropriate.

14. At that time, SPN code 264 meant character and behavior/personality disorders and SPN code 46A meant apathy, defective attitude, and inability to expend effort constructively.

15. On 3 August 1967 the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his general discharge.

16. The applicant obtained an Exemplary Rehabilitation Certificate from the Department of Labor on 8 May 1969.

17. This Board considered and denied the applicant's request to upgrade his discharge on 7 May 1975.

18. Between 1974 and 1977 the applicant made a concerted effort to upgrade his discharge and to obtain waivers so that he could reenlist in the Regular Army. These efforts were undertaken with the support of his California Army National Guard (ARNG) supervisors and chain of command. For example, an 11 March 1977 letter from a chief warrant officer four (CW4) pilot explained that the applicant had been hired in August 1971 as a helicopter mechanic and since that time had been a dual status Federal Civil Service employee and a drilling member of a California ARNG unit. There is also a 12 March 1977 letter from a major, the applicant's troop commander, who noted that the applicant had joined the California ARNG in October 1970. He supported the applicant's assignment to higher-level positions in either the ARNG or the Regular Army (RA). His second wife wrote numerous letters in which she asserted that she was aware of the situation in Berlin in 1965 because both she and the applicant's then current wife had worked at the Adjutant General section of the Berlin Brigade. A lot of pressure had been exerted on the applicant's chain of command, in spite of or because of the first wife's social liaisons.

19. The details of his enlistment in the California Army National Guard (ARNG) are not of record; however, the involvement of his chain of command in the continued efforts to upgrade his discharge and obtain a RA reenlistment waiver indicates that they were aware of the nature of his discharge.

20. On 20 March 1977, the applicant again applied to the ADRB for upgrade of his discharge. His application package included a supporting letter from his unit commander in the California ARNG. The ADRB reviewed the applicant's service under the provisions of the Department of Defense (DOD), Discharge Review Project (Special) (SDRP) and concluded that, based on his overall record of service and the mitigation arising from his family problems, an honorable discharge was warranted. The ADRB decisional document did not specify any reason or authority.

21. A new DD Form 214 was issued as the result of the ADRB's upgrade decision. Item 9c, Authority and Reason, shows "AR 635-209 SPN 264 &46A" and "DOD Discharge Review Program (Special) and SPD KCR". SPD (Separation Program Designator) KCR simply meant DOD Discharge Review Program (Special).

22. On 4 April 1977 the 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 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. The above criteria

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were designated primary criteria. Consideration of other factors (secondary criteria), including possible personal problems that may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

23. In October 1977, Public Law 95-126 was enacted. This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector. The DOD was required to establish historically consistent, uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs. Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

24. The records of the applicant's service in the California Army National Guard are largely unavailable, although he was awarded the Army Commendation Medal on 20 October 1989 for 10 years of "selfless dedication" to the Army Reserve (USAR). Other documents submitted by the applicant show that he was transferred to the Retired Reserve as a sergeant first class (E-7) [on
14 August 1989] and on 31 December 1994 he voluntarily retired under the Civil Service Retirement System in the General Schedule (GS) grade 12, Aircraft Quality Assurance Specialist. His application for Reserve Retired pay at age 60 was approved on 25 February 1999.

25. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Armed Forces Expeditionary Medal for qualifying service after 1 July 1958 in U.S. military operations, U.S. operations in direct support of the United Nations, and U.S. operations of assistance for friendly foreign nations. Qualifying service for this award includes the requirements to be a bona fide member in a unit and to be engaged in the operation or serve in the area of operations for 30
days, be engaged in direct support of the operation for 30 consecutive or 60 nonconsecutive days provided support involves entering the area of operations,
be engaged in combat, participate as a member of an aircraft flying in support of the operation, or be recommended or attached to a unit recommended for award of the medal if the above criteria have not been met. The award is authorized for Berlin for the period 14 August 1961 to 1 June 1963. A bronze service star is authorized to denote subsequent awards but only one award may be authorized for service in a single designated area.

26. Army Regulation 600-8-22 also provides, in pertinent part, that the Army of Occupation Medal is awarded for service of thirty consecutive days at a normal post of duty in a qualifying location. Personnel at a qualifying location as an inspector, courier, escort, temporary or detached duty are precluded from eligibility. Qualifying service for Berlin clasp is from 9 May 1945 through 2 October 1990. There is no Berlin clasp. Individuals authorized the award for Berlin wear the Germany clasp on the ribbon. There is no regulatory provision for more than a single Army of Occupation Medal for any one geographic area.

27. The regulation also provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service. This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service. A record of punishment is not automatically disqualifying. At that time, a single conduct or efficiency rating of less than excellent was disqualifying; although, a “Good” academic mark in a
service school was not disqualifying. Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified. Current practice requires that the commander provide written notice of non-favorable consideration and permits the individual to respond. At that time, non-favorable consideration was normally noted on the DA Form 20.

28. Paragraph 8-8 of the regulation provides for award of the Expert Infantryman Badge. Award of the Expert Infantryman Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an infantry unit of at least battalion size. To be eligible for testing and award of the Expert Infantryman Badge, a soldier must be in an active Army status and must have an infantry or special forces specialty.

29. The National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, and 2 August 1990 through 30 November 1995.

30. Army Regulation 635-5 provides the policy and guidance for completion of separation documents, including DD Form 214. The policies for MOS and awards have changed over time. Although the current practice is to list all MOSs held for a year or more and all authorized awards, at the time of the applicant's service, the DD Form 214 has a blank for only a primary MOS and only those awards received during a current period were to be listed. At the time a new DD Form 214 was issued as the result of the SDRP review, the version of the form had separate blanks for primary and secondary MOSs.

CONCLUSIONS:

1. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge was commensurate with the applicant's overall record of military service.

2. The Board noted the years of successful service prior to the misconduct and difficulties that led to the 1965 discharge. It also noted the mitigation arising from that service and from his years of fully successful service in the ARNG, USAR and as a Federal Civil Service employee. The Board concluded that the continued existence of the reason and authority for the present discharge that reflects both unsuitability and the discredited and deprecatory SDRP is now unjust.

3. The reason and authority for the applicant's honorable discharge should be changed to Secretarial authority.

4. His last duty assignment was B Company, 2^nd Battalion, 6^th Infantry, Berlin Brigade. That unit should be listed correctly on his DD Form 214.

5. The applicant was issued a security clearance but there are indications that it was revoked. There is insufficient available evidence to conclude that the DD 214 should reflect a security clearance.

6. The applicant would not have been charged for excess leave if he had accrued leave. There is no basis to change those items on his DD Form 214.

7. The applicant served in a regular tour of duty an infantryman with C Company 3^rd Battle Group, 6^th Infantry, Berlin Brigade between 12 March 1963 and 1 June 1963 and is entitled to award of the Armed Forces Expeditionary Medal. He also served honorably between 1 January 1961 and 14 August 1974 and is entitled to the National Defense Service Medal. It is unjust for these awards to not be shown on his DD Form 214.

8. The applicant served on active duty from 12 April 1957 to May 1964 with only a single minor disciplinary infraction of record. During that period he had reenlisted twice and been promoted to sergeant (E-5). Consequently, he should be authorized the Good Conduct Medal for the period 12 April 1957 through 11 April 1960 and the second award for the period 12 April 1960 through 11 April 1963.

9. There is no available evidence to show that the applicant qualified for or was awarded the Expert Infantryman Badge. There is no regulatory provision for more than one award of the Army of Occupation Medal for the same geographic area.

10. Considering that the applicant's service as an MP is shown on two earlier DD Forms 214 and that the version of the form used in 1965 provided for only a primary MOS to be listed, showing a secondary MOS on a currently revised DD Form 214 would not be appropriate.

11. In view of the foregoing, correcting the applicant’s records as recommended below will rectify injustices.

RECOMMENDATION:

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

a. voiding the current DD Form 214 dated 23 November 1965 held by the individual concerned;

b. issuing a new DD Form 214 of the same date showing that the individual concerned separated with an honorable discharge due to Secretarial Authority;

c. showing in item 11 of his DD Form 214 that his last duty assignment and major command was B Company, 2^nd Battalion, 6^th Infantry, Berlin Brigade and;

d. showing that, in addition to the awards currently shown on his DD Form 214, he is authorized the Armed Forces Expeditionary Medal, the National Defense Service Medal and the Good Conduct Medal 2^nd Award.

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

BOARD VOTE:

__FNE___ __MVT__ __JTM__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _ Margaret V. Thompson__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002076185
SUFFIX
RECON
DATE BOARDED	20030819
TYPE OF DISCHARGE	HD,
DATE OF DISCHARGE	16951122
DISCHARGE AUTHORITY	AR635-209
DISCHARGE REASON	A42.00
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.