MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 28 October 2003
                  DOCKET NUMBER: AR2003090198

         I certify that hereinafter is recorded the record of consideration 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 J. Wagner		Chairperson
Ms. Linda D. Simmons		Member
Ms. Marla J. Troup		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         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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APPLICANT REQUESTS: That his undesirable discharge be upgraded.

APPLICANT STATES: That he went from Vietnam to a spitshine company and he could not adjust. No one helped him to adjust. He was not treated fairly by fellow soldiers. They were called baby killers. He took all he could stand and then left without proper leave. He served proudly from 1963 – 1966 and also in Vietnam from 1967 – 1968. He is sure that if he had had the proper help when he returned from Vietnam he would have continued to serve the Army proudly. He provides no supporting evidence.

EVIDENCE OF RECORD: The applicant's military records show:

He initially served in the Regular Army from April 1963 – April 1966 when he was honorably released from active duty. He reenlisted in the Regular Army on 23 June 1966.

On 21 February 1967, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for absenting himself from his place of duty.

On 6 September 1967, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from on or about 5 May 1967 to on or about 31 July 1967. He was sentenced to confinement at hard labor for 4 months and to forfeit $86.00 pay per month for 4 months (forfeiture suspended for 4 months).

The applicant arrived in Vietnam on or about 8 November 1967 and was assigned to Headquarters and Headquarters Company, 168th Engineer Battalion where he performed duties as a wheel vehicle mechanic. He was reassigned to the 27th Engineer Battalion, Land Clearing Team on 12 May 1968. He was promoted to Specialist Five, E-5 on 12 October 1968.

The applicant departed Vietnam on 4 November 1968 after being credited with participation in five campaigns. He was assigned to Garrison Company, U. S. Army Garrison, Fort McPherson, GA with duty at the post motor pool.

On 27 February 1970, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 18 June 1969 to on or about 30 September 1969 and from on or about 28 October 1969 to on or about 13 January 1970.

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Sometime in February 1970, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of an undesirable discharge and that he might be deprived of many or all Army and Veterans Administration benefits.

The applicant submitted a statement in his own behalf. He stated that while in Vietnam he was awarded an Army Commendation Medal and a Bronze Star Medal for having cleared landing fields and base camp areas for their advancing units. After returning from Vietnam he had trouble in adjusting to non-combat military service. The members of his unit were continually harassed over what seemed minor issues to him. Continually re-polishing and re-cleaning what he considered already presentable vehicles seemed an onerous rather than a necessary and useful military task. When he attempted to stand up for his men, he was repeatedly admonished. Faced with those circumstances, he left his unit without authority. He met his fiancée while absent. His fiancée was faced with the prospect of losing her children unless she got married and could support them. He realized that should he be court-martialed, the reduction and forfeitures would make supporting a family impossible. He had a job waiting for him whenever he got out of the service. In light of his prior service and in view of the serious AWOL charges that were pending against him, he respectfully asked that his request be favorably considered.

On 16 March 1970, the appropriate authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate.

On 5 June 1970, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge. He had completed 2 years, 9 months, and 17 days of creditable active service that period for a total of 5 years, 9 months, and 12 days of creditable active service and had 416 days of lost time.

Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 5 June 1970 shows that he received no awards and decorations. There is no evidence of record to show the applicant was awarded the Army Commendation Medal of the Bronze Star Medal. His DA Form 20 (Enlisted Qualification Record) shows he qualified as a marksman with the rifle M-14 on 21 September 1966.

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Item 22c (Foreign and/or Sea Service) of the applicant's DD Form 214 fails to show he served any foreign service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

Army Regulation 635-200 states, in pertinent part, that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Service Medal. This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973. Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations. A bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation is authorized for wear on the Vietnam Service Medal. A silver service star is worn instead of five bronze service stars.

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 contributions to direct combat support to the Republic of Vietnam and Armed Forces.

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Army Regulation 600-8-2 provides, in pertinent part, for award of the National Defense Service Medal for honorable active service for any period between 27 June 1950 and 27 July 1954, both dates inclusive, between 1 January 1961 and 24 August 1974, both dates inclusive, and between 2 August 1990 and 30 November 1995, both dates inclusive, and between 11 September 2001 to a date to be determined.

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 168th Engineer Battalion, it was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 3 November 1967 through 9 February 1970 by Department of the Army General Orders Number 43 dated 1970.

Department of the Army General Number Orders 8, 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U. S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U. S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

Army Regulation 635-5 prescribes the separation documents prepared for soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. The regulation in effect at the time provided for the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 to be listed in item 12c. An entry was also required in item 30 (Remarks) to list the inclusive dates of service in Vietnam during the covered period of service.

On 11 April 1974, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

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

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2. The applicant's prior good service was recognized with the characterization in April 1966 of his service as honorable.

3. The evidence of record shows the applicant's record of misconduct during his second period of service began before he served in Vietnam. In February 1967, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for absenting himself from his place of duty. In September 1967, he was convicted by a special court-martial of an extended period of AWOL.

4. It appears the applicant's service in Vietnam was satisfactory although there is no evidence of record to show he was awarded the Army Commendation Medal or the Bronze Star Medal. He then had two extended periods of AWOL after he returned from Vietnam.

5. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress. Considering the whole record of his second period of service, there is an insufficient basis on which to warrant upgrading his characterization of service to either fully honorable or general under honorable conditions.

6. It is noted that the applicant's DD Form 214 for the period ending 5 June 1970 contains several administrative errors. He met the eligibility criteria for award of the National Defense Service Medal, the Vietnam Service Medal with one silver service star, the Republic of Vietnam Campaign Medal with device 1960, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Medal First Class Unit Citation. He qualified as a marksman with the rifle M-14 and is eligible to wear the Marksman Qualification Badge with Rifle bar. He served in Vietnam. His DD Form 214 for this period should be administratively corrected to reflect these facts.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE: The Board requests that the Army Review Boards Agency Support Division – St. Louis amend the applicant’s DD Form 214 for the period ending 5 June 1970 by adding the National Defense Service Medal, the Vietnam Service Medal with one silver service star, the Republic of Vietnam Campaign Medal with device 1960, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Medal First Class Unit Citation and the Marksman Qualification Badge with Rifle bar to item 24; by showing he served 1 year and 5 days of foreign service in item 22c; and by showing he served in Vietnam from 8 November 1967 through 4 November 1968 in item 30.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__rjw___ __lds___ __mjt___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003090198
SUFFIX
RECON
DATE BOARDED	20031028
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19700605
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.00
2.
3.
4.
5.
6.