PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 September 2003
         DOCKET NUMBER: AR2003083983


         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. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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 his undesirable discharge (UD) be upgraded to general or honorable.

3. The applicant states that he was separated with a UD for unfitness under the provisions of Army Regulation (AR) 635-212, but that the regulation provides for a general or honorable discharge if special circumstances dictate. He states that he was wounded in combat and was awarded the Purple Heart and believes that he should have received a general or honorable discharge. He adds that during his lengthy recuperation period, he was not offered adequate rehabilitation and/or counseling; that he sought a hearing before a Medical Evaluation Board (MEB), but did not get it; that he was under extreme pressure due to personal problems involving an unfaithful wife and a young child. He concludes by stating that his record was impeccable through his Vietnam service and that his life has been exemplary since his discharge.

4. The applicant's counsel reviewed his request and his records. Counsel reiterated the applicant's claim that he was a good soldier; that he went to Vietnam and was severely wounded in combat; and that, upon his return to the United States for rehabilitation, he discovered that his family life was in shambles and went AWOL (absent without leave) to deal with it. Counsel adds that the applicant was under intense stress from trying to deal with his physical wounds and that the Army concentrated on treating the body, not the mind. Counsel concluded by stating that the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not reflect all of the awards to which he is entitled, specifically the Combat Infantryman Badge (CIB).

5. The applicant’s military records show that he completed 8 years of formal education and, on 5 November 1968, at age 19, he enlisted in the Regular Army (RA) for 2 years. Upon completion of all required military training at Fort Gordon, Georgia, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). While at Fort Gordon, he had his first period of AWOL from 19 - 26 April 1969. There is no record of him being punished for this offense and his DA Form 20 (Enlisted Qualification Record) indicates his conduct and efficiency for the period was "excellent."

6. The applicant's first permanent duty assignment was Vietnam, arriving there on/about 9 June 1969. On 21 June 1969, he was assigned to Troop A, 1st Squadron, 10th Cavalry, 4th Infantry Division, with duties in MOS 11B. One month later, on 20 July 1969, the applicant was wounded and he was evacuated to the 249th General Hospital, Camp Drake, Japan. On/about 15 August 1969, he was further evacuated to Fort Jackson, South Carolina, and admitted as a patient and assigned to the Medical Holding Company (MHC), US Army Hospital, Fort Jackson.

7. The applicant went AWOL while assigned to the MHC. He was absent from 20 October - 12 November 1969, from 12 November - 2 December 1969, from 3 December 1969 - 6 February 1970, and from 6 April - 28 July 1970. Charges were preferred against him and, on 8 September 1970, he was tried and convicted by a special court-martial and sentenced to forfeit $50 pay per month for 6 months.

8. The applicant went AWOL again from 28 September - 2 December 1970 when he was returned to military control at Fort Gordon. He was assigned to the Special Processing Detachment and court-martial charges were preferred against him. On 11 January 1971, he was convicted by a special court-martial and sentenced to confinement at hard labor for 3 months and reduction to Private (PVT/E-1).

9. On 27 January 1971, a bar to reenlistment was initiated against the applicant as a result of the above periods of AWOL and his two court-martial convictions. Both his conduct and efficiency ratings were unsatisfactory. On the same date, the applicant acknowledged the bar in writing and stated that he did not desire to respond.

10. The applicant's records do not contain all of the facts and circumstances surrounding the discharge process. However, the record contains a document, dated 17 February 1971, showing that the appropriate authority waived further rehabilitation, approved the chain of command's recommendation for separation and directed that the applicant be separated under the provisions of AR 635-212, with a UD, due to being involved in frequent incidents of a discreditable nature with civil or military authorities.

11. The applicant's records also contain a properly constituted DD Form 214 signed by the applicant at the time of separation. The DD Form 214 shows that, on 22 February 1971, he was separated with a UD by reason of unfitness under the provisions of AR 635-212 due to being involved in frequent incidents of a discreditable nature with civil or military authorities. He had completed 1 year, 2 months, and 4 days of active military service and he had 328 days of lost time due to being AWOL and in military confinement. The applicant's DD Form 214 shows he was awarded the Purple Heart, the Vietnam Service Medal (VSM), and the Sharpshooter Badge (Rifle).

12. On 22 February 1971, the applicant also annotated and authenticated a statement of medical condition, in which he acknowledged he underwent a medical examination which determined he was qualified for separation more than 3 working days prior to separation and that there had been no change in his medical condition. There are no medical documents available, nor is there any evidence that he requested an MEB.

13. There is no evidence the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.

14. AR 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel who were found to be unfit or unsuitable for military service. The regulation further provided, in pertinent part, that service members discharged for unfitness would normally be furnished a UD unless circumstances warranted a general or honorable discharge.

15. AR 600-8-22 (Military Awards) sets forth Department of the Army criteria, policy and instructions concerning individual military awards, service medals and service ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments. It states, in pertinent part:

         a. That the Combat Infantryman Badge (CIB) is awarded to infantry officers and to enlisted and warrant officer personnel 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 individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

         b. That the National Defense Service Medal (NDSM) is awarded for honorable active service for any period between 27 June 1950 and 27 July 1954, between 1 January 1961 and 14 August 1974, and between 2 August 1990 and 30 November 1995.

         c. That the Vietnam Campaign Medal (VCM) is awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 - 28 March 1973. Qualifying service included assignment in Vietnam for 6 months or service outside the geographical limits of the Republic of Vietnam that contributed direct combat support to the Republic of Vietnam and its Armed Forces. Individuals who had qualified for award of the Vietnam Service Medal and were evacuated prior to completing 6 months of service due wounds resulting from hostile action were entitled to award of the Vietnam Campaign Medal.

16. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam, as well as the various campaigns with their start and end dates. Department of the Army General Orders (DAGO) 8, dated 1974, announced

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award of the Vietnam Gallantry Cross Unit Citation with Palm for Headquarters, United States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973; the applicant is entitled to this award. He is also entitled to one Bronze Service Star to be worn on his Vietnam Service Medal for his participation in the Vietnam Summer - Fall 1969 Campaign.

CONCLUSIONS:

1. In order to justify a discharge upgrade, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that his current discharge is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant was separated for unfitness under the provisions of AR 635-212 because of his numerous and lengthy periods of AWOL, for which he was twice convicted by courts-martial and given extremely lenient sentences. The Board believes that the Army treated the applicant in a lenient fashion out of deference to his Vietnam service and his wounding - when he could have been given a bad conduct discharge, he was merely fined the first time and reduced and given confinement at the second trial. Failing to correct his behavior, the applicant was subjected to an administrative separation process resulting in his receiving a UD. Given the totality of the applicant's record, the Board believes the UD was completely warranted and is still appropriate.

3. The Board agrees with applicant's counsel that the applicant's DD Form 214 does not reflect all of the awards to which he is entitled. In addition to the awards shown on his DD Form 214, he is entitled to the NDSM, VCM, CIB, a Bronze Service Star for his VSM, and the Vietnam Gallantry Cross Unit Citation with Palm.

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 and DD Form 215 (Correction to DD Form 214):

         a. Deleting the Vietnam Service Medal; and

         b. Adding the NDSM, VSM with 1 Bronze Service Star, VCM, CIB, and Vietnam Gallantry Cross Unit Citation with Palm.

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

BOARD VOTE:

__fne___ __mhm___ __kah___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Fred N. Eichorn
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003083983
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19710222
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A50.00
BOARD DECISION	GRANT PLUS
REVIEW AUTHORITY
ISSUES 1.	110.0000
2.	128.0000
3.
4.
5.
6.