RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050015160


      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. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |Member               |

      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 reconsideration of his earlier request that his
undesirable discharge be upgraded to honorable.  He also requests award of
the Combat Medical Badge, the Purple Heart, and a Bronze Star Medal.

2.  The applicant stated, in his 11 June 2004 application to the Army Board
for Correction of Military Records (ABCMR), that he could not have been
discharged under the provisions of Army Regulation 635-200, chapter 10, as
the court-martial charges preferred against him were for a special court-
martial that was not empowered to adjudge a bad conduct discharge.  He
states he had ineffective counsel in that his military counsel advised him
to sign the request for discharge without first properly disclosing to him
the prejudicial and injurious nature of its contents and its implications
with relevance to his situation and position (i.e., that the court-martial
had no authority to impose a bad conduct discharge).

3.  The applicant also states, in supplemental letters with his current
application, that he separated on temporary, incomplete, and partial
records.  He states that, in effect, those records and his service medical
records should have been reviewed and considered by the commander for the
applicant's potential for rehabilitation and before approving the
undesirable discharge.  The fact he had just been released from the
military hospital in Osaka, Japan was a signal that there may have been a
medical causation for his misconduct.  He also states his medical records
from Vietnam and Osaka, Japan are missing or otherwise unavailable to him.

4.  The applicant provided, with his 11 June 2004 application to the ABCMR,
an approved clemency discharge; his discharge packet; two United States
Court of Appeals, District of Columbia Circuit court cases; two copies of
chapter 10, Army Regulation 635-200 (dated 19 April 1972 and 1 May 1982); a
copy of two pages from his 4-page DA Form 20 (Enlisted Qualification
Record); a copy of his separation physical examination; a copy of his
service medical records; and a service representative narrative summary.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were
summarized in the previous consideration of the applicant's case by the
ABCMR in Docket Number AC97-05335 on 3 September 1997.

2.  The applicant requested correction of his records to show award of the
Bronze Star Medal.  There are no orders or other evidence authorizing award
of this decoration to the applicant.  In the absence of a proper award
authority for this decoration, the applicant may request award of the
Bronze Star Medal under the provisions of section 1130 of Title 10, U. S.
Code.  He has been notified by separate correspondence of the procedures
for applying for this decoration under section 1130 and, as a result, it
will not be discussed further in this Record of Proceedings.

3.  The applicant's enlistment contract in not available; however, his
enlistment orders show he enlisted in the Regular Army on 28 April 1967 for
3 years, making his expiration term of service (ETS) 27 April 1970.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty (MOS) 91A10.

4.  On 22 December 1967, the applicant was convicted by a special court-
martial of being disrespectful in language toward a commissioned officer,
of two specifications of assault, and of destruction of government
property.  His punishment included 6 months confinement at hard labor.  His
DA Form            20 shows he served 132 days in confinement.

5.  On 23 August 1968, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully
urinating on the floor and in the sand urn smoking stand, for disobeying a
lawful order, and for being disrespectful in language toward a superior
noncommissioned officer.

6.  On 23 August 1968, the applicant accepted NJP under Article 15, UCMJ
for being absent without leave (AWOL) from 1 to 8 July 1969.

7.  The applicant arrived in Vietnam and was assigned to Headquarters and
Headquarters Company, 3d Brigade, 82d Airborne Division on 24 January 1969.
On 27 January 1969, he was reassigned to Company B, 82d Support Battalion,
3d Brigade, 82d Airborne Division.  On 6 February 1969, he was reassigned
to Headquarters and Headquarters Company, 1st Battalion, 505th Infantry.

8.  On 19 June 1969, the applicant was reassigned, apparently in a patient
status, to the Medical Company, Valley Forge General Hospital,
Phoenixville, PA. His service medical records indicate he was seen on 26
June 1969 for a complaint of two episodes of unconsciousness and
generalized seizures two weeks prior.  He had a past history of hepatitis,
recovered.  He was referred to
the Neurology Clinic.  No Neurology evaluation results are available.  On
28 July 1969, he was referred to the Psychiatric Clinic for evaluation of
personal problems.  The Consultation Sheet notes, dated 29 July 1969,
indicate he cancelled or did not keep [his] appointment.

9.  The applicant's DA Form 20 indicates he was in pre-trial confinement
for      16 days from 1 through 16 October 1969.  On 17 October 1969, he
was convicted by a special court-martial of being AWOL from 1 August to
            19 September 1969.  His punishment included a reduction to pay
grade E-1.

10.  On 2 February 1970, court-martial charges were preferred against the
applicant for being AWOL from 31 October 1969 to 23 January 1970.  On
    3 February 1970, the commander referred the applicant for trial by
special court-martial subject to the following instructions:  "No reporter
authorized."

11.  On 12 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 a
discharge under other than honorable conditions and that he might be
deprived of many or all Army and Veterans Administration benefits.  He
elected not to submit a statement in his own behalf.

12.  On 20 February 1970, the appropriate authority approved the
applicant’s request and directed he receive an undesirable discharge.

13.  On 20 February 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, 5
months, and 5 days of creditable active service and had 304 days of lost
time (per his Army Discharge Review Board (ADRB) case, he had 139 days
AWOL, 148 days military confinement, and 17 days civilian confinement).
His DD Form              214 (Armed Forces of the United States Report of
Transfer or Discharge) shows only his 139 days of AWOL as lost time.  His
DD Form 214 also erroneously shows his date of entry as 27 April 1967 in
item 17c.

14.  Item 40 (Wounds) of the applicant's DA Form 20 does not show he was
wounded in action.  His name is not listed on the Vietnam Casualty Roster.

15.  On 28 June 1978, the applicant applied to the ADRB for an upgrade of
his discharge.  He noted in his application that he became addicted to
drugs while
serving in Germany and Vietnam and because of that he was unable to
complete his service.  He also stated hardship in his family (his fiancée
had a baby) at the time pressed him to "resign."

16.  On 3 September 1997, the ABCMR denied the applicant's request to
upgrade his discharge because he failed to file within the Board's 3-year
statute of limitations.

17.  On 11 June 2004, the applicant requested reconsideration of his
request to upgrade his discharge to honorable.  His case was
administratively closed on    22 March 2005 for failing to timely file.

18.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation states, in
pertinent part, that a member who has committed an offense or offenses for
which the authorized punishment includes a punitive discharge may submit a
request for discharge for the good of the service in lieu of trial by court-
martial.  The request may be submitted at any time after charges have been
preferred and must include the individual’s admission of guilt.  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.

19.  The Manual for Courts-Martial, United States, Article 19 (Jurisdiction
of special courts-martial) states, in part, that special courts-martial may
not adjudge a bad conduct discharge, confinement for more than six months,
or forfeiture of pay for more than six month unless a complete record of
the proceedings and testimony has been made.

20.  The applicant provided a case for the United States Court of Appeals,
District of Columbia Circuit called White v. Secretary of the Army, 878
F.2d 501 (D.C. Cir. 1989).  In this case, White completed basic training
but subsequently committed a substantial number of infractions.  He was
facing his third court-martial – a special court-martial for another AWOL –
when he requested discharge for the good of the service.  However, the
special court-martial he was referred to could not adjudge a bad conduct
discharge as the convening commander had specified, "No reporter
authorized."  White had appealed his discharge to the ABCMR, which
concluded his discharge under less than honorable conditions was
inevitable.  The ABCMR hypothesized that White would have been convicted of
the AWOL charge and returned to duty, his
commander would have then initiated an administrative separation for
"frequent incidents of a discreditable nature with civil or military
authorities," and a board of officers would have recommended he be
separated with an undesirable discharge.

21.  The Court of Appeals for the District of Columbia Circuit found the
ABCMR's conclusions, in White's case, to be too speculative.  Since the
Court found White's undesirable discharge to have been fatally flawed, it
found the only practical and appropriate remedy was to treat White as if he
had completed his full term of service and to require the Army to give him
either an honorable or a general discharge.

22.  Army Regulation 635-200 states 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).  It is the
pattern of behavior and not the isolated instance which should be
considered the governing factor in determination of character of service to
be awarded.  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.

23.  Title 10, U. S. Code, section 972 states an enlisted member who is
AWOL or confined by military authorities for more than one day in
connection with a trial is liable, after his return to full duty, to serve
for a period that, when added to the period he served before his absence
from duty, amounts to the term for which he was enlisted or inducted.

24.  Army Regulation 600-8-22 (Military Awards) states 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 by a
medical officer, and the medical treatment must have been made a matter of
official record.

25.  Army Regulation 600-8-22 states the Combat Medical Badge may be
awarded to Medical Department personnel assigned or attached to infantry
units of brigade or smaller size who satisfactorily perform medical duties
while the unit is engaged in actual ground combat, provided they are
personally present and
under fire.  The award was established to recognize medical aidmen who
shared the same hazards and hardships of ground combat on a daily basis
with the infantry Soldier.  So stringent was this requirement during the
Vietnam era that recommending officials were required to document the place
(in six-digit coordinates), time, type, and intensity of fire to which the
proposed recipient was exposed.  This fact naturally precludes the awarding
of the badge to those medical personnel who accompany infantry units into a
potential engagement area but do not come under enemy fire.

DISCUSSION AND CONCLUSIONS:

1.  The Board is not convinced the applicant requested discharge for the
good of the service only because his military counsel advised him
conviction by court-martial could have resulted in a bad conduct discharge.
 As he stated in his application to the ADRB, the fact his fiancée had a
baby pressed him to "resign." From this statement, it appears reasonable to
presume that had he been processed for administrative separation for
"frequent incidents of a discreditable nature with civil or military
authorities" he would have waived consideration by a board of officers and
accepted an undesirable discharge.

2.  Nevertheless, the applicant's actual situation almost parallels that of
White.  A special court-martial may not adjudge a bad conduct discharge
unless a complete record of the proceedings and testimony has been made,
i.e., unless a court reporter is assigned to take that complete record of
proceedings and testimony.  The applicant's commander specifically
instructed:  "No reporter authorized."  Therefore, the applicant's special
court-martial also was not empowered to adjudicate a bad conduct discharge
and, thus, his request for discharge for the good of the service was
invalid.

3.  Although the Court of Appeals for the District of Columbia Circuit's
decision in White v. Secretary of the Army is not binding in the
applicant's case, it would be equitable to void the applicant's discharge
for the good of the service and to show he served until his ETS.  However,
the applicant's service (i.e., two special court-martial convictions, two
Article 15s, and ending a third special court-martial at the time of his
separation) was insufficiently meritorious to warrant showing he separated
with a fully honorable characterization of service.

4.  The applicant's normal ETS would have been 27 April 1970.  He had 304
days of lost time.  His adjusted ETS would have been 25 February 1971.  His
records should be corrected to show he was discharged on 25 February 1971
with a general discharge upon his ETS.

5.  There is no evidence of record that shows the applicant was wounded or
treated for wounds as a result of hostile action.  Therefore, there is
insufficient evidence on which to base award of the Purple Heart.

6.  There is no evidence of record that shows the applicant served in the
field under fire; therefore, there is insufficient evidence on which to
show he met the eligibility criteria for award of the Combat Medical Badge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__rtd____  __jbg___  __swf____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS, above the Board
determined during their review that the evidence presented was sufficient
to warrant amendment of the ABCMR’s decision in Docket Number AC97-05335
dated 3 September 1997.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

     a.  showing he was discharged from the service with a general under
honorable conditions discharge on 20 February 1970.  The Board determined
that since the applicant had been AWOL it would not be appropriate to pay
him for time not served based on an adjusted expiration term of service
date; and

     b.  issuing him a new DD Form 214 reflecting the above corrections
                                  (ensuring
the document shows he entered active duty on 28 April 1967).

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 his discharge to fully honorable and to awarding him the Purple
Heart and the Combat Medical Badge.




                                  __Richard T. Dunbar______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050015160                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700426                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |110.00                                  |
|2.                      |107.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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