RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 July 2006
      DOCKET NUMBER:  AR20050015962


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric Andersen                 |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Dennis Phillips               |     |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 undesirable discharge be upgraded to a
general discharge.  He also requests award of the Purple Heart and a third
award of the Good Conduct Medal.

2.  The applicant states he has two honorable discharges.  He contends that
he did not receive a Purple Heart when he was wounded in Vietnam.  He also
contends that he did not receive a third award of the Good Conduct Medal.

3.  The applicant provides no additional evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on
11 November 1974.  The application submitted in this case is dated 27
October 2005.

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.  The applicant enlisted on 28 January 1964 for a period of 3 years.  He
served as a field artillery basic crewman in Germany and was honorably
discharged on 20 June 1966 for immediate reenlistment.  He reenlisted on 21
June 1966 for a period of 6 years.  He served as a field artillery crewman
assigned to Battery C, 2nd Battalion, 17th Artillery in Vietnam from 21
June 1968 through 16 June 1969. On 19 October 1972, the applicant was
honorably discharged for immediate reenlistment.

4.  There is no evidence in the available records which shows that the
applicant was awarded the Purple Heart or was wounded as a result of
hostile action in Vietnam.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) does not
show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20
is blank.  The applicant's name does not appear on the Vietnam Casualty
Roster.

6.  Orders show the applicant received the first award of the Good Conduct
Medal for the period 28 January 1964 to 27 January 1967 and the second
award of the Good Conduct Medal for the period 28 January 1967 to 27
January 1970.

7.  Records show the applicant participated in five campaigns during his
assignment in Vietnam.

8.  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 the applicant's unit is entitled
to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation
based on Department of the Army General Orders Number 54, dated 1974.

9.  The applicant's DD Form 214 (Report of Transfer or Discharge) for the
period ending 19 October 1972 shows the Vietnam Service Medal, the National
Defense Service Medal, the Good Conduct Medal, and two awards of the
Overseas Service Bar as authorized awards.

10.  The applicant reenlisted on 20 October 1972 for a period of 6 years.

11.  On 26 July 1974, the applicant's commander notified him that he was
initiating action to separate him from the service under the provisions of
Army Regulation 635-200, chapter 13, for unfitness.  He cited as the basis
for his recommendation the applicant's established pattern of shirking,
dishonorable failure to pay numerous just debts, his record of nonjudicial
punishment totaling five, his failure to respond to numerous counseling
sessions regarding his indebtedness, sexual perversion, dishonesty and four
civilian charges.  The recommendation contained an extensive number of
exhibits (61) to support the commander's contentions.

12.  The applicant exercised his rights and elected to be represented by
counsel and to appear before a board of officers.  He also elected not to
submit a statement in his own behalf.

13.  On 26 September 1974, a board of officers was convened and the
applicant was represented by counsel.  The board of officers recommended
that the applicant be separated under other than honorable conditions under
the provisions of Army Regulation 635-200, chapter 13.  The approval
authority approved the findings and recommendations of the board.




14.  The applicant was discharged under other than honorable conditions on
11 November 1974 under the provisions of Army Regulation 635-200, chapter
13, for unfitness.  He had served a total of 10 years, 9 months, and 14
days of total active service.

15.  The applicant's DD Form 214 (Report of Separation from Active Duty)
for the period ending 11 November 1974 shows the National Defense Service
Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal
with Device 1960, two awards of the Good Conduct Medal, two awards of the
Overseas Service Bar, and two service stripes as authorized awards.

16.  There are no orders for a third award of the Good conduct Medal in the
applicant's service personnel records.  His DA Form 20 shows he received a
"Fair" conduct rating and an "Unsatisfactory" efficiency rating for the
period
31 March 1970 to 15 September 1971.  His DA Form 20 also shows he received
"Good" conduct and efficiency ratings during the period 4 August 1972 to 31
May 1973.

17.  On 31 March 1977, the Army Discharge Review Board (ADRB) denied the
applicant’s request for a general discharge.  On 12 September 1977, the
ADRB denied the applicant's request for a discharge upgrade.

18.  Army Regulation 635-200 set forth the basic authority for separation
of enlisted personnel.  Chapter 13, in effect at the time, applied to
separation for unfitness and unsuitability.  An undesirable discharge was
normally considered appropriate.

19.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

20.  Army Regulation 600-8-22 (Military Awards) 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.

21.  Army Regulation 672-5-1, in effect at the time, provided policy and
criteria concerning individual military decorations.  It stated that the
Army Good Conduct Medal was awarded for each 3 years of continuous enlisted
active Federal military service completed on or after 27 August 1940 and,
for the first award only, upon termination of service on or after 27 June
1950 of less than 3 years but more than 1 year.  At the time, a Soldier's
conduct and efficiency ratings must
have been rated as "excellent" for the entire period of qualifying service
except that a service school efficiency rating based upon academic
proficiency of at least "good" rendered subsequent to 22 November 1955 was
not disqualifying.  However, there was no right or entitlement to the medal
until the immediate commander made positive recommendation for its award
and until the awarding authority announced the award in General Orders.

22.  Army Regulation 600-8-22, in pertinent part, authorizes award of a
bronze service star, based on qualifying service, for each campaign listed
in Appendix B of this regulation and states that authorized bronze service
stars will be worn on the appropriate service medal.  This regulation
provides that a silver service star is authorized in lieu of five bronze
service stars.

23.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's record of service included an established pattern of
shirking, dishonorable failure to pay numerous just debts, five nonjudicial
punishments, failure to respond to numerous counseling sessions regarding
his indebtedness, sexual perversion, dishonesty and four civilian charges.
As a result, his quality of service did not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
the applicant's record of service is insufficiently meritorious to warrant
a general discharge.

4.  Although the applicant contends that he was wounded in Vietnam, there
is no evidence of record which shows that the applicant was wounded or
treated for any injuries as a result of hostile action in Vietnam.
Therefore, there is insufficient evidence on which to base an award of the
Purple Heart in this case.
5.  Orders show the applicant received the first award of the Good Conduct
Medal for the period 28 January 1964 to 27 January 1967 and the second
award of the Good Conduct Medal for the period 28 January 1967 to 27
January 1970.
There are no orders for a third award of the Good Conduct Medal in the
available records.  The applicant's military records show he received a
"Fair" conduct rating and an "Unsatisfactory" efficiency rating for the
period 31 March 1970 to 15 September 1971 and conduct and efficiency
ratings of "Good" during the period 4 August 1972 to 31 May 1973 which are
disqualifying factors for award of the Good Conduct Medal.  Therefore, the
applicant does not meet the eligibility criteria for a third award of the
Good Conduct Medal.

6.  The applicant participated in five campaigns during his assignment in
Vietnam which entitles him to award of the Vietnam Service Medal with one
silver service star.

7.  The applicant’s unit was cited for award of the Republic of Vietnam
Gallantry Cross with Palm Unit Citation while he was assigned to it.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 12 September 1977.
 As a result, the time for the applicant to file a request for correction
of any error or injustice to this Board expired on 11 September 1980.  The
applicant did not file within the 3-year statute of limitations and has not
provided a compelling explanation or evidence to show that it would be in
the interest of justice to excuse failure to file in this case.

9.  Evidence shows that the applicant’s records contain administrative
errors which do 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 3 of the BOARD DETERMINATION/RECOMMENDATION section
below.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

EA_____  MF_____  DP______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.

3.  The Board determined that administrative errors in the records of the
individual concerned should be corrected.  Therefore, the Board requests
that the CMSD-St. Louis administratively correct the records of the
individual concerned
to show that he was awarded the Vietnam Service Medal with one silver
service star and the Republic of Vietnam Gallantry Cross with Palm Unit
Citation.




                                  __Eric Andersen_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015962                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060706                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19741111                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 13                   |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |107.0015                                |
|3.                      |107.0056                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]