PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 March 2003
         DOCKET NUMBER: AR2002079209


         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. William D. Powers		Member
Ms. Linda M. Barker		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 reconsideration of his previous application to correct his military records by upgrading his general discharge to honorable. He also submitted requests for award of the Purple Heart and the Air Medal which are new issues not previously considered by the Army Board for Correction of Military Records (ABCMR).

3. The applicant states that his discharge should be upgraded to honorable because he was separated for failing to adjust to the racial discrimination of that time period. He contends that he is entitled to the Purple Heart because he was injured as a result of hostile fire and treated at the aid station while serving with the 199th Light Infantry Brigade. He also contends that he is entitled to the Air Medal because he flew 100 hours while assigned to A Troop, 3rd Squadron of the 17th Armored Cavalry Regiment.

4. Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect consideration of Docket Number AC90-06119 by the ABCMR on 14 November 1990.

5. With his request for reconsideration for a discharge upgrade to honorable, the applicant once again restated that his discharge should be upgraded because he was the victim of racial discrimination. This same contention was considered by the ABCMR on 14 November 1990.

6. The Board notes that the applicant's disciplinary record included two special court-martial convictions for assault, disrespectful language and communicating a threat to kill; and three nonjudicial punishments.

7. The Board also notes that the applicant was separated with a general discharge for unsuitability on 16 December 1970 based on a passive aggressive personality disorder diagnosed by a psychiatrist on 8 December 1970.

8. In his current request, the applicant requests award of the Purple Heart and the Air Medal. These are new issues that will be considered by the Board.

9. The applicant's DD Form 214 (Report of Transfer or Discharge), which was authenticated in his own hand, does not show the Purple Heart or the Air Medal as authorized awards.

10. There is no evidence in the available records which shows the applicant was wounded or treated for wounds as a result of hostile action in Vietnam.

11. The applicant's DA Form 20 (Enlisted Qualification Record) does not reflect entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.


12. The applicant's name does not appear on the Vietnam Casualty Roster.

13. 1st Aviation Brigade General Orders Number 6279, dated 13 July 1970, show the applicant was awarded the basic Air Medal for meritorious achievement while participating in aerial flight during the period 2 March 1970 to 8 April 1970 in Vietnam.

14. 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 Meritorious Unit Commendation for actions during the period 31 January 1968 to 15 June 1969 by Department of the Army General Orders Number 39, dated 1970. This award is not shown on the applicant's DD Form 214.

15. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 51, dated 1971. This award is not shown on his DD Form 214.

16. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) also shows the applicant is entitled to award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 51, dated 1971. This award is not shown on his DD Form 214.

17. The applicant's DD Form 214 shows the "Vietnam Service Medal W/Bronze Service Star" as an authorized award. His records show that he served in Vietnam from 31 March 1969 through 6 July 1970 and participated in five campaigns.

18. Item 41 (Awards and Decorations) on the applicant's DA Form 20 (Enlisted Qualification Record) shows entitlement to two awards of the Overseas Service Bar. These awards are not shown on his DD Form 214.

19. Army Regulation 635-200 (Enlisted Personnel) was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service was to be determined solely by the individual's military record during the current enlistment. Further, any separation for unsuitability, based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated. It required retroactive


application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

20. Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

21. Army Regulation 600-8-22 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.

22. Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal. This regulation also provides, in pertinent part, that a silver service star is authorized in lieu of five bronze service stars.

23. Army Regulation 670-1, in effect at the time, governs the requirements for the Overseas Service Bar. In pertinent part, it provides that a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1 or appropriate Department of the Army message. There are special provisions regarding authorization for the Overseas Service Bar for service in a hostile fire zone and for combining service to calculate award of the bars. For Vietnam service, one overseas service bar is authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973. Both the month of arrival and the month of departure from Vietnam are counted as whole months for credit toward the overseas service bar.




24. Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

25. Army Regulation 15-185 provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

CONCLUSIONS:

1. The Board considered the applicant's contention that his discharge should be upgraded to honorable because he was the victim of racial discrimination. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.

2. The applicant’s administrative separation on 16 December 1970 was accomplished in accordance with regulations then in effect.

3. However, during processing for discharge, the applicant was diagnosed with a passive aggressive personality disorder by a psychiatrist.

4. In view of the foregoing, it appears that the above-mentioned memorandums should be applied to his case and considered for review for upgrade.

5. The Board reviewed the applicant’s record of service which included two special court-martial convictions for assault and communicating a threat to kill. Since the Nelson Memorandum states that conviction by more than one special court-martial was determined to be “clear and demonstrable reasons” which would justify a less than fully honorable discharge, the Board determined that a general discharge is appropriate in this case.




6. Based on the foregoing, this Board determined that there is no basis to overturn the decision of the ABCMR on 14 November 1990 which denied upgrade of the applicant's general discharge to honorable. In view of the applicant's record, there also is no basis for this Board to upgrade the applicant's general discharge to honorable at this time.

7. The Board considered the applicant's contention that he was injured as a result of hostile action and treated at the aid station. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, which shows that he was wounded or treated for wounds as a result of hostile action in Vietnam. Therefore, the Board determined that there is insufficient evidence on which to base award of the Purple Heart in this case.

8. The applicant received the basic Air Medal on 13 July 1970. Therefore, the applicant is entitled to correction of his DD Form 214 to show this medal.

9. The applicant's unit received the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was assigned to it. Therefore, the applicant is entitled to correction of his DD Form 214 to show these unit awards.

10. The applicant’s DD Form 214 shows the "Vietnam Service Medal W/Bronze Service Star" as an authorized award. However, evidence of record shows the applicant participated in five campaigns during his assignment in Vietnam which is not correctly shown by award of one silver service star for wear on his Vietnam Service Medal. Therefore, in accordance with the governing regulation, the applicant is entitled to the Vietnam Service Medal with one silver service star and correction of his DD Form 214 to show these awards.

11. Based on the applicant's service in Vietnam from 31 March 1969 through
6 July 1970, he is entitled to two awards of the Overseas Service Bar. Therefore, his DD Form 214 should be corrected to show these awards.

12. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant's records, but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was awarded the Air Medal, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Vietnam Service Medal with one silver service star and two awards of the Overseas Service Bar.

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

BOARD VOTE:

RJW____ WDP___ LMB_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond J. Wagner_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002079209
SUFFIX
RECON	Yes
DATE BOARDED	20030304
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19701216
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	Unsuitability
BOARD DECISION	Grant
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.	107.0000
3.
4.
5.
6.