RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2007
      DOCKET NUMBER:  AR20070001310


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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, in effect, award of the Purple Heart (PH) and
an upgrade of his discharge.

2.  The applicant states, in effect, he was shot while in a helicopter in
the Republic of Vietnam (RVN), when enemy fire came through the floor of
the helicopter wounding him in the left thigh; however, he was never
awarded the PH.

3.  The applicant provides a self-authored statement, dated 10 August 2006
and doctor's statement, dated 11 August 2005 in support of his application.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 September 1970, the date of his final separation.  The
application submitted in this case is dated 10 August 2006.

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's record shows that he initially enlisted in the Regular
Army and entered active duty on 16 March 1967.  He was trained in and
awarded military occupational specialty (MOS) 11B (Infantryman), and the
highest rank he attained while serving on active duty was specialist four
(SP4).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 1 December 1967 through 5 February 1969.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
Company C, 1st Battalion, 506th Infantry Regiment, through 10 June 1968,
performing duties in MOS 11B as a team leader; and to the 175th Aviation
Company from 11 June 1968 through 25 January 1969, performing duties in MOS
67A as a door gunner.


5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows
that he earned the National Defense Service Medal, Vietnam Service Medal,
RVN Campaign Medal, Parachutist Badge, Combat Infantryman Badge, Air Medal,
Expert Marksmanship Qualification Badge with Rifle and Machinegun Bars, and
2 Overseas Service Bars.

6.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on two separate occasions and a conviction
by a special court-martial (SPCM).

7.  On 22 May 1967, the applicant accepted NJP for being absent without
leave (AWOL) from 19 through 20 May 1967.  His punishment for this offense
was a forfeiture of $21.00 and 14 days of restriction and extra duty.

8.  On 29 August 1969, the applicant accepted NJP for being AWOL from
16 through 25 August 1969.  His punishment for this offense was forfeiture
of seven days pay, reduction to private first class (PFC), and 14 days of
restriction and extra duty.

9.  On 3 November 1969, a SPCM found the applicant guilty of violating
Article 86 of the UCMJ by being AWOL from on or about 18 September through
on or about 16 October 1969.  The resultant sentence was confinement at
hard labor for 30 days, reduction to private/E-2 (PV2), and a forfeiture of
$50.00.

10.  On 12 December 1969, the applicant departed AWOL from his organization
at Fort Bragg, North Carolina.  He remained away for 241 days until
returning to military control on 10 August 1970.

11.  On 17 August 1970, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the UCMJ by being AWOL from on or about 12 December 1969
through on or about
10 August 1970.

12.  On 18 August 1970, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial under
circumstances that could lead to a bad conduct or dishonorable discharge,
of the effects of a request for discharge for the good of the service in
lieu of trial by court-martial, and of the rights available to him.
Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service in lieu of trial by court-
martial, under the provisions of chapter 10, Army Regulation 635-200.
13.  In his request for discharge, the applicant acknowledged his
understanding that he could deprived of many or all Army benefits, that he
could be ineligible for many or all benefits administered by the Department
of Veterans Affairs (VA), that he could be deprived of his rights and
benefits as a veteran under both State and Federal law, and that he could
face substantial prejudice in civilian life by reason of having an
undesirable discharge (UD).

14.  On 9 September 1970, the separation authority approved the applicant's
discharge under the provisions of chapter 10, Army Regulation 635-200, for
the good of the service, and directed the applicant receive an UD and that
he be reduced to the lowest enlisted grade.

15.  On 9 September 1970, the applicant was discharged under the provisions
of chapter 10, Army Regulation 635-200, and he received an UD.  The
separation document (DD Form 214) he was issued confirms he completed 2
years,
6 months, and 25 days of creditable active military service and that he
accrued 270 days of time lost due to AWOL and confinement.  On 5 January
1981, the Army Discharge Review Board (ADRB) upgraded the applicant's
discharge to general, under honorable conditions.

16.  On 5 January 1981, the Army Discharge Review Board (ADRB) voted to
upgrade the applicant's discharge to general, under honorable conditions
based on his overall record of service, which included combat service in
the RVN.

17.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This
roster contains an entry pertaining to the applicant that confirms he was
wounded in action in the RVN on 23 July 1968, and that he was hospitalized
and treated for this wound, which was categorized as "Not Serious
Hospital".

18.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  Paragraph 2-8 contains the
regulatory guidance pertaining to awarding the PH.  It states, in pertinent
part, that the PH is awarded to any member who has been wounded or killed
in action. A wound is defined as an injury to any part of the body from an
outside force or agent sustained under conditions defined by this
regulation.

19.  Paragraph 2-13 of the awards regulation contains guidance on the
Vietnam Service Medal.  It states, in pertinent part, that a bronze service
star is authorized with this award for each RVN campaign a member is
credited with participating in.  A silver service star was issued in lieu
of 5 bronze service stars to denote
participation in five campaigns.  Table B-1 contains a list of RVN
campaigns.  It shows that during the applicant’s tenure of assignment,
campaign credit was awarded for the Vietnam Counteroffensive Phase III, TET
Counteroffensive, Vietnam Counteroffensive Phase IV, Vietnam
Counteroffensive Phase V, and Vietnam Counteroffensive Phase VI campaigns.

20.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for campaign
participation credit, assault landing credit, and unit citation badges
awarded during the Vietnam Conflict.  It confirms that during his tenure of
assignment in the RVN, the applicant’s units (1st Battalion, 506th Infantry
Regiment and 175th Aviation Company) received the Meritorious Unit
Commendation and Republic of Vietnam Gallantry Cross with Palm Unit
Citation.

21.  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.
Although the separation authority may award an honorable or general
discharge if warranted by the service record of the member, 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 UD.

22.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records
(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 claim of entitlement to the PH was carefully considered
and found to have merit.  The evidence of record confirms the applicant was
wounded in action in the RVN on 23 July 1968, and that he was hospitalized
and
treated for this wound, as confirmed by an entry on the Vietnam Casualty
Roster, the official DA list of RVN battle casualties.  Therefore, it would
be appropriate to award him the PH and to add it to his records at this
time.

2.  The record also confirms that based on his RVN service and campaign
participation, the applicant is also entitled to the Meritorious Unit
Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation,
and 1 silver service star with his Vietnam Service Medal.  Therefore, it
would also be appropriate to add these awards to his record and separation
document at this time.

3.  The applicant's request for an upgrade of his discharge was also
carefully considered.  However, the evidence of record confirms the
applicant was charged with the commission of an offense punishable under
the UCMJ with a punitive discharge.  All requirements of law and regulation
were met and that the rights of the applicant were fully protected
throughout the separation process.  It further shows that based on his
overall record of service, and particularly his combat service in the RVN,
the ADRB upgraded his discharge to a GD in 1981.

4.  The applicant's overall record of service supports the upgrade granted
by the ADRB; however, the applicant's extensive record of AWOL related
misconduct clearly diminished the overall quality of his service below that
meriting a fully honorable discharge.  Therefore, it would not be
appropriate to further upgrade his discharge at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___WFC_  __EEM__  __RMN _  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 awarding him the Purple
Heart for being wounded in action in the Republic of Vietnam on 23 July
1968; by showing his entitlement to
the Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with
Palm Unit Citation, and 1 silver service star with his already-awarded
Vietnam Service Medal; and by providing him a correction to his separation
document that includes these changes.

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
a further upgrade of his discharge.




                            _____William F. Crain______
                                      CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070001310                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/08                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1970/09/09                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |Good of the Svc                         |
|BOARD DECISION          |Partial GRANT                           |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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