RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 APRIL 2005
      DOCKET NUMBER:  AR20040004126


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Larry Bergquist               |     |Member               |
|     |Mr. Larry Olson                   |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to reflect award
of the Republic of Vietnam Gallantry Cross Unit Citation with Palm and that
his March 1971 general discharge be upgraded to fully honorable.

2.  The applicant states that his conduct and efficient ratings prior to
and while assigned to Vietnam were all excellent and that after Vietnam
they were “totally unsatisfactory.”  He states that in 1981 he was
diagnosed with PTSD (posttraumatic stress disorder) and now suffers from
chronic PTSD.

3.  He states, however, that his court-martial action was “a laugh.”  He
states that his records will show that there was not enough time for him to
be in jail for 2 days before his discharge and that there was not enough
time for him to “pull one week’s worth of hard labor much less 60 days.”
He states that he “pulled no hard time” and was not charged by the court,
only by his captain because he thought he could get away with it.  He
states he was an E-4 when he walked into the courtroom and questions how he
could have been discharged as an E-1.

4.  The applicant states that the Adjutant General of the Army wrote to his
captain, prior to his court-martial, telling him that he would be honorably
discharged.  However, after his court-martial, the applicant states that a
sergeant told him if he would just sign the documents in front of him he
could get a general discharge and would not lose any benefits.  He states
that he signed the documents because he just “wanted to be gone before [he]
shot someone….”

5.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 March 1971.  The application submitted in this case is
dated
10 December 2003.

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 limitations




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.  Records available to the Board indicate that the applicant entered
active duty on 1 December 1966 and was trained as a movement specialist.
He was initially assigned to the United States Overseas Replacement Station
at Fort Jackson, South Carolina, and in October 1967 he was assigned to the
403rd Transportation Company in Vietnam as a cargo handler.

4.  While in Vietnam, the applicant would have been credited with
participating in four designated campaign periods (Vietnam Counteroffensive
Phases III, IV, and V, and TET Counteroffensive).  Four bronze service
stars on his Vietnam Service Medal should reflect his campaign
participation.  Department of the Army Pamphlet 672-3 provides, in
pertinent part, for award of the Republic of Vietnam Gallantry Cross Unit
Citation with Palm to all individuals who served in Vietnam between 20 July
1965 and 28 March 1973 in a unit which was subordinate to Headquarters,
United States Army Vietnam.  The applicant’s unit was such a unit.

5.  The applicant remained in Vietnam until October 1968 when he returned
to the United States and was assigned to Fort Eustis, Virginia.  On 19
December 1968 he was discharged for the purpose of immediate reenlistment.
The separation document, issued at the time of his discharge for the
purpose of reenlistment, does not reflect entitlement to the Republic of
Vietnam Gallantry Cross Unit Citation with Palm or his campaign
participation.

6.  In February 1969 the applicant was reassigned to a transportation
command in Europe.  Until his reassignment to Europe in 1969, the applicant
had consistently received excellent conduct and efficiency ratings and by
December 1969 he had been promoted to pay grade E-5.

7.  In June 1970 the applicant was punished under Article 15 of the Uniform
Code of Military Justice for disobeying an order, and being absent without
authority, which resulted in his missing formation and duty.  His
punishment included reduction to pay grade E-4.





8.  On 8 January 1971 court-martial charges were preferred against the
applicant for being absent without leave from 2 September 1970 until on or
about
5 January 1971.  On 1 February 1971 he was found guilty of the charge and
sentenced to perform two months of hard labor without confinement, forfeit
of $80.00 per month for 4 months, and to be reduced to pay grade E-1.  The
sentence was adjudged on 1 February 1971 and approved on 5 March 1971.  His
reduction to pay grade E-1 was effective on 5 March 1971, the day his
sentence was approved.

9.  On 9 March 1971 the applicant’s unit commander notified the applicant
that he was initiating action to administratively discharge the applicant
under the provisions of Army Regulation 635-212 for unsuitability.  The
basis for his recommendation was the applicant’s repeated commission of
offenses, declining ability to adjust to changing military situations,
belligerent attitude, absent without leave, conviction by a special court-
martial, and inability to respond to counseling.  In the recommendation,
the commander indicated that the applicant had been reassigned to three
different job locations within the 18 months prior to his AWOL period and
in each location he failed to adjust to the situation and was a chronic
malcontent.

10.  The applicant consulted with counsel and waived his attendant rights.
The recommendation for administrative separation was approved and on 19
March 1971 the applicant was discharged under honorable conditions.

11.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 6a(1) of the
regulation provided, in pertinent part, that members involved in frequent
incidents of a discreditable nature with civil or military authorities were
subject to separation for unfitness.  An undesirable discharge was normally
considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant is entitled to the Republic of
Vietnam Gallantry Cross Unit Citation with Palm and four bronze service
stars on his Vietnam Service Medal.  His December 1968 separation document
should be corrected to reflect that information.

2.  The evidence also confirms that the applicant was charged, and
convicted by a special court-martial.  His sentence did not include any
confinement, and the fact that he may not have “pull one week’s worth of
hard labor much less 60 days” is not evidence that his court-martial
conviction did not occur or that it was invalid.
3.  His court-martial sentence included reduction to pay grade E-1 which is
why he was discharged in that grade.  The fact that he was discharged
shortly after his court-martial sentence was approved is also not evidence
of any error or injustice; in fact, the applicant should consider himself
fortunate that he was not required to fulfill his court-martial sentence
prior to being administratively discharged under honorable condition.

4.  Contrary to the applicant’s contention, his conduct and efficiency
ratings did not deteriorate until 1970 when he was assigned to duties in
Germany.  He returned from Vietnam in 1968, continued to receive excellent
conduct and efficiency ratings while assigned to Fort Eustis, Virginia,
reenlisted, and was promoted to pay grade E-5 in December 1969.  Such
conduct is evidence that the applicant continued to be able to serve
honorably following his return from Vietnam and that may have contributed
to his receiving a general discharge rather than an undesirable discharge,
which was usually the discharge issued as a result of being discharged
under Army Regulation 635-212.

5.  The applicant has not submitted any evidence that his PTSD, for which
he is now receiving treatment, should somehow excuse the misconduct which
resulted in his general discharge in 1971.

6.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement as it related to his request to upgrade the
character of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__RW___  ___LB __  ___LO  __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing on his 1968
separation document that he was entitled to the Republic of Vietnam
Gallantry Cross Unit Citation with Palm and four bronze service stars on
his Vietnam Service Medal.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
upgrading the character of his 1971 discharge.




                            ____ Raymond Wagner_______
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004126                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050419                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |110.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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