PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 14 August 2003
         DOCKET NUMBER: AR2003086947


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. James E. Anderholm		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, in effect, that his upgraded discharge be affirmed.

3. The applicant states his problems started when he was medically evacuated from Vietnam to Fort Devens, MA. His hip was operated on but the bullet lodged there could not be removed. The attending doctor (who soon thereafter was reassigned) told him he would be getting a medical discharge. He signed a waiver to be taken off airborne duty and chose to stay at Fort Devens to await his medical discharge. The next thing he knew he received orders to report to Fort Carson, CO. When he asked his new doctor about his medical discharge, the doctor brushed him off by saying it would be taken care of at Fort Carson.

4. The applicant states that his company commander at Fort Carson would not recognize his physical profile and said he was faking it. He was forced to go on marches and field maneuvers although the doctors there said that he could not do that. Around January 1969, he was placed back in the hospital for further hip surgery but his company commander still harassed him. After the surgery, he was placed on convalescent leave. His company commander called his home and told his mother he did not have to return to Fort Carson. That summer, while he was still on crutches, he was picked up by the Federal Bureau of Investigation. He was returned to Fort Devens and put in a holding company for absentees. He did not have his medical paperwork with him so his physical profiles were not recognized. He was treated like a lowlife. He would be placed on pass, only to be picked up for being absent without leave (AWOL).

5. The applicant further states that in 1974 or 1975, he got a letter telling him to go to Fort Benjamin Harrison, IN for discharge. He was told he could return to the Army or be discharged. With all the ways he was being treated, he chose the discharge. He just signed the papers he was told to sign. He only had a 7th grade education and did not understand he was signing away his rights. At that time he was put in front of a board consisting of two Army officers and two Marine Corps officers. Because he could not prove he had a Silver Star, he was told he would not get an honorable discharge.

6. As supporting evidence, the applicant provides a supporting statement from his former first sergeant; a supporting statement from his former company commander; the narrative to the recommendation for the Silver Star prepared by his former company commander, dated 16 December 1998; and his Representative in Congress's endorsement of the recommendation for the Silver Star.

7. The applicant’s military records show that he enlisted in the Regular Army on 17 May 1967. He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

8. The applicant arrived in Vietnam on or about 18 December 1967. He was assigned to Company D, 3d Battalion (Airborne), 187th Infantry as an airborne- qualified rifleman. He was wounded on 18 March 1968 and medically evacuated to the U. S. Army Hospital, Camp Zama, Japan after receiving participation credit for two campaigns.

9. The applicant was assigned to Medical Holding Detachment, U. S. Army Hospital, Fort Devens, MA on 3 April 1968.

10. The applicant's service medical records are not available.

11. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 20 – 30 June 1968.

12. The applicant was reassigned to Company C, 1st Battalion, 10th Infantry, Fort Carson, CO on or about 5 October 1968.

13. The applicant's DA Form 20 shows he had 10 periods of AWOL/dropped from the rolls/confinement between 22 January 1969 and 8 September 1971. He departed AWOL again on 24 September 1971.

14. By letter dated 21 November 1974, the applicant was notified of the provisions of Presidential Proclamation Number 4313 (PP 4313). On 2 December 1974, he turned himself in under the provisions of PP 4313.

15. On 3 December 1974, the applicant was discharged, with a discharge under other than honorable conditions, under the provisions of PP 4313. He had completed 2 years, 4 months, and 25 days of creditable active service and had a total of 1872 days of lost time. His DD Form 214 shows he was awarded the National Defense Service Medal, the Expert Qualification Badge with Rifle bar, the Parachute Badge, the Purple Heart, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Expert Qualification Badge with Machine Gun bar, and the Vietnam Service Medal.

16. On 11 February 1977, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to general under honorable conditions under the provisions of the 19 January 1977 extension of PP 4313.

17. On 23 May 1978, the ADRB voted, in a 3 to 2 decision, not to affirm the applicant's upgraded characterization of service under uniform standards. The ADRB considered the applicant's initial excellent service; however, it did not consider that to be of sufficient magnitude to outweigh his acts of [in]discipline which led to his discharge.

18. The applicant was awarded the Silver Star on U. S. Total Army Personnel Command Permanent Order 153-4, dated 2 June 1999, for the period 16 to 19 March 1968.

19. Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals. One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted. For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge. The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.

20. A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension). This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) records free of any compelling reason to deny relief. This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals. Whether the individuals had performed alternate service was not an issue to be considered.

21. The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.” It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused therefrom in accordance with PP 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.

22. Public Law 95-126 provided in pertinent part for a “Relook Program.” All cases upgraded from under other than honorable conditions under the SDRP or extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits. Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures.

23. Army Regulation 600-8-22 (Military Awards) provides for the award of the Combat Infantryman Badge to a soldier who is an infantryman satisfactorily performing infantry duties, who is assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must actively participate in such ground combat. Campaign or battle credit alone is not sufficient for award of the CIB.

24. Army Regulation 600-8-22 provides for award of the Republic of Vietnam Campaign Medal with Device 1960 to personnel who have served in the Republic of Vietnam for 6 months during the period 1 March 1961 to 28 March 1973, inclusive, or have served for less than 6 months and have been wounded by hostile forces.

25. Army Regulation 600-8-22 provides for the wear of one bronze service star on the appropriate service medal for each credited campaign.

26. 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 that, at the time of the applicant's assignment to the 3d Battalion, 187th Infantry, it was cited for award of the Valorous Unit Award for the period 16 through 22 March 1968 by Department of the Army General Orders Number 22, dated 1976.

27. Department of the Army Pamphlet 672-3 also shows that, at the time of the applicant's assignment to the 3d Battalion, 187th Infantry, it was cited for award of the Meritorious Unit Commendation for the period 14 March through 3 October 1968 by Department of the Army General Orders Number 22, dated 1976.

CONCLUSIONS:

1. On 23 May 1978, the ADRB voted, in a 3 to 2 decision, not to affirm the applicant's upgraded characterization of service under uniform standards. The ADRB considered the applicant's initial excellent service; however, it did not consider that to be of sufficient magnitude to outweigh his acts of indiscipline which led to his discharge.

2. In 1999, the applicant was awarded the Silver Star for gallantry in action during the period 16 to 19 March 1968. The Board considers that this award is of "sufficient magnitude" to outweigh the applicant's acts of indiscipline enough to warrant affirming his upgraded general under honorable conditions discharge.

3. The applicant should be mindful that he had over 180 days of continuous absence. Under Public Law 95-126, 180 days of continuous unauthorized absence acts as a specific bar to eligibility for VA benefits. Although this Board has concluded that the applicant's discharge, as upgraded by the ADRB, should be affirmed, the Army has no jurisdiction over the VA, which operates under its own policies and procedures.

4. The Board also concludes that the applicant met the eligibility criteria for award of the Combat Infantryman Badge. His DD Form 214 should be amended to add this award.

5. The Board notes that the applicant met the eligibility criteria for award of the Republic of Vietnam Campaign Medal with Device 1960 by virtue of his being wounded while in Vietnam. He also met the eligibility criteria for wear of two bronze service stars on the Vietnam Service Medal. His DD Form 214 should be amended to add these awards.

6. The applicant was assigned to a unit during a period of time that unit was awarded the Valorous Unit Award and the Meritorious Unit Commendation. These unit awards should be added to his DD Form 214.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the applicant's discharge, upgraded to general under honorable conditions under the provisions of the 19 January 1977 extension of Presidential Proclamation 4313 by the ADRB, is affirmed.

2. That the applicant's DD Form 214 be amended to add the Combat Infantryman Badge, the Republic of Vietnam Campaign Medal with Device 1960, the Valorous Unit Award, and the Meritorious Unit Commendation and to show he is authorized to wear two bronze service stars on the Vietnam Service Medal.

BOARD VOTE:

__rvo___ __lmb___ __jea___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond V. O'Connor_
                  CHAIRPERSON

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INDEX

CASE ID	AR2003086947
SUFFIX
RECON
DATE BOARDED	20030814
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	110.00
2.	107.0111
3.	110.04
4.
5.
6.