RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 9 December 2003
         DOCKET NUMBER: AR2003088001


         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Ms. Eloise C. Prendergast		Member
Mr. Raymond J. Wagner		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, on two separate applications, that his general discharge be upgraded to honorable and that his DD Form 214 (Report of Transfer or Discharge) be corrected to show all awards he may be entitled to including the Purple Heart and the Combat Infantryman Badge (CIB).

2. The applicant states that he should have received an honorable discharge and that his DD Form 214 failed to show all awards and decorations that he was entitled to.

3. The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice and error which occurred on 29 June 1969, the date of his discharge. The application submitted in this case is dated 22 August 2002.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant military records show he enlisted on 28 November 1967, as a clerk typist (71B). He served in Vietnam from 25 December 1968 to 28 June 1969, and was separated on temporary records.

4. Between 6 February 1968 and 14 March 1969, he received nonjudicial punishment on four occasions under Article 15, Uniform Code of Military Justice (UCMJ), for violation of company restriction, for being absent from his appointed place of duty, for failure to report for duty, for dereliction of duty, and for failure to obey a lawful order on two occasions. His punishments consisted of forfeitures of pay, reduction to pay grade E-2 (suspended), restriction, and extra duties.
On 28 March 1969, he was reduced to pay grade E-2.







5. On 31 March 1969, the applicant underwent a neuropsychiatric examination which diagnosed the applicant as having an immature personality; passive-dependent type. The social work officer stated that there were no disqualifying
mental defects sufficient to warrant disposition through medical channels. He determined that the applicant could distinguish right from wrong and that he possessed the mental capacity to participate in administrative or judicial board proceedings.

6. The applicant underwent a separation medical examination on 10 April 1969 and was found qualified for separation.

7. On 10 April 1969, the applicant’s commander submitted a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-212, for unsuitability. He based his recommendation on the applicant's apathetic attitude toward his duties manifested by unsatisfactory performance of duties and unsatisfactory course of conduct. After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

8. On 27 April 1969, the separation authority approved the recommendation for discharge and directed that he be furnished a General Discharge. The applicant was discharged on 29 June 1969. He had a total of 1 year, 7 months, and 2 days of creditable service.

9. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10. Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel. It stated, in pertinent part, that individuals would be separated for unsuitability due to aptitude, character and behavior disorders, apathy, alcoholism, or enuresis and that the individual would be furnished an honorable or general discharge.

11. Item 24 (Awards and Decorations) of the applicant’s DD Form 214 shows the entry "NVAL" (not available).

12. Item 40 (Wounds) of his DA Form 20 does not show an entry and does not show the Purple Heart as an entry in item 41 (Awards and Decorations). It shows that he was awarded the National Defense Service Medal and the Vietnam Service Medal.

13. The applicant’s name failed to appear on the Vietnam Casualty List for a wound received during the period 25 December 1968 to 29 June 1969.


14. There are no orders in the applicant’s personnel records which show that he
was awarded the CIB or an infantry MOS. His records confirm that he served in MOS 71B as a clerk typist during his tour in Vietnam.

15. Army Regulation 600-8-22 shows that while the applicant was assigned to Vietnam he participated in three campaigns. The regulation also provides that a bronze service star is authorized for the Vietnam Service Medal for each campaigned participated in.

16. 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.

17. Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons 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 Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

18. Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Campaign Medal. This medal was 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 through 28 March 1973. Qualifying service included assignment in Vietnam for 6 months or more and contributed direct combat support to the Republic of Vietnam and the Armed Forces. Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due to wounds resulting from hostile action were entitled to award of the Vietnam Campaign Medal.

19. 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 8, dated 1974.

20. The same register also shows that, at the time of the applicant's assignment to the 124^th Signal Battalion, the unit was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders 53, dated 1970.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

2. The type of separation directed and the reasons for that separation were appropriate considering all of the facts of the case.

3. The applicant has provided no evidence to show that his discharge was unjust. He also has not provided any evidence sufficient to mitigate the character of his discharge.

4. There is no evidence available to the Board, and the applicant has provided no evidence, which shows that he was injured or wounded while serving in Vietnam during the period 25 December 1968 to 29 June 1969. Therefore, there is insufficient basis to approve an award of the Purple Heart.

5. The evidence of record shows that the applicant performed duties in MOS 71B as a clerk typist while serving in Vietnam. There is no evidence of record, and the applicant has provided no independent evidence, that shows he was ever awarded the CIB or assigned as an infantryman. Therefore, the Board concludes there is an insufficient evidentiary basis to warrant the requested relief.

6. The applicant participated in three campaigns and is entitled to three bronze service stars associated with the Vietnam Service Medal.

7. The evidence of record shows that the applicant was eligible for Vietnam Campaign Medal. Therefore, he is entitled to correction of records to show this award.

8. The applicant’s unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation. Therefore, he is entitled to correction of his records to show these awards.

9. Evidence shows that the applicant’s records contain administrative error, which does not require action by the Board. Therefore, administrative correction of the applicant's records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__mm___ __ep___ __rw____ DENY APPLICATION

1. The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.

2. The Board determined that administrative error in the records of the individual should be corrected. Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show the National Defense Service Medal, the Vietnam Service Medal with three bronze service stars, the Vietnam Campaign Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.




                  __Mark D. Manning____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088001
SUFFIX
RECON
DATE BOARDED	20031209
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	360
2.	46
3.
4.
5.
6.