RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 October 2007
	DOCKET NUMBER:  AR20070004780 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. James E. Anderholm

Member

Mr. Joe R. Schroeder

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, that his undesirable discharge be upgraded to an honorable or general discharge.

2.  The applicant states, in effect, that he was young and messed up, he had no time to talk to anyone about his problems at the time, and he was not properly represented by a lawyer.  The applicant asks the Board to “at least give [him] time to explain [his] lost time”; however, he offers no explanation concerning his lost time in his application.  The applicant  further states, in effect, that he loves his country, that even a general discharge would be great, and he would like to receive his awards and decorations so that he may put them in a show case for his granddaughter.

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military service records show that he enlisted and entered active duty in the Regular Army for a period of 3 years on 10 August 1971.  The applicant’s records show that his date of birth is 27 June 1953.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 31 (Foreign Service) of this document shows that he served 13 months in the Republic of Korea, from 13 January 1972 through
12 February 1973, and that he was credited with completion of the normal tour.
Item 41 (Awards and Decorations) shows he was awarded the National Defense Service Medal, Armed Forces Expeditionary Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant’s military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 15 June 1972.  This document shows that nonjudicial punishment was imposed by the brigade commander against the applicant for, on or about 13 May 1972, wrongfully having in his possession an undetermined amount of marijuana.  His punishment consisted of reduction to the grade of private first class (E-3) (suspended for 60 days); 30 days restriction; 30 days extra duty; and forfeiture of $50.00 per month for a period of 2 months.

5.  The applicant’s military service records contain a copy of a DA Form 2627-1, dated 25 September 1972.  This document shows that nonjudicial punishment was imposed against the applicant by the company commander for, on or about 25 September 1972, violating a lawful general regulation by being off the Camp Hovey compound without having in his possession an overnight pass and failing to report to his place of duty.  His punishment consisted of 14 days restriction;
14 days extra duty; forfeiture of $65.00 per month for 1 month; and reduction to the grade of private first class (E-3).

6.  The applicant’s military service records contain a copy of a DA Form 2627-1, dated 3 October 1972.  This document shows that nonjudicial punishment was imposed against the applicant by the company commander for, on or about
3 October 1972, failing to report to his place of duty at the time prescribed.  His punishment consisted of 14 days restriction; 14 days extra duty; forfeiture of
7 days pay ($74.00); and reduction to the grade of private (E-2).

7.  The applicant’s military service records contain a copy of a DA Form 2627-1, dated 2 November 1972.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about
22 October 1972, wrongfully entering a building with intent to commit a criminal offense therein and, for on or about 29 October 1972, violating a lawful general regulation by being off the Camp Hovey compound with an illegal overnight pass in his possession.  His punishment consisted of reduction to the grade of private (E-1) (suspended for 60 days); 14 days restriction; and 14 days extra duty.

8.  The applicant’s military service records contain a copy of a Certificate of Unsuitability for Reenlistment, dated 30 November 1972, with accompanying endorsements, which show that an approved Bar to Reenlistment was imposed against the applicant on 22 December 1972, for frequently involving himself with drugs, a belligerent attitude toward noncommissioned officers and commissioned officers, and imposition of punishment under Article 15 on 7 occasions.  This documentation also shows, in pertinent part, that the applicant’s company commander counseled the applicant on numerous occasions and advised him of the adverse consequences that might ensue from his actions.

9.  The applicant’s military service records contain a copy of a DA Form 2627-1, dated 9 August 1973.  This document shows that nonjudicial punishment was imposed by the commander against the applicant for, on or about 5 April 1973, without authority, absenting himself from his unit and remaining absent until, on or about 7 July 1973.  His punishment consisted of reduction to the grade of private (E-1); forfeiture of $153.00 per month for 2 months; and 30 days extra duty.

10.  On 19 September 1973, the unit commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5, for unfitness based upon a defective attitude and poor rehabilitative potential, as evidenced by his military personnel records and failure to be rehabilitated.  The basis for the commander’s recommendation of the applicant's separation included 93 days time lost by virtue of being AWOL, from 5 April 1973 to 6 July 1973, and disciplinary action taken under Article 15, UCMJ, on 5 occasions.  This document also shows that the applicant had been given every opportunity to improve his conduct and duty performance and that he was counseled by his commander on numerous occasions to no avail.  The applicant was also advised of his rights.

11.  The applicant consulted with legal counsel and acknowledged with his signature that he had been advised of the basis for the contemplated action to separate him from the Army for unfitness, waived consideration of his case by a board of officers, waived personal appearance before a board of officers, did not submit statements in his own behalf, and waived representation by counsel.   In addition, the applicant was advised he may be issued an undesirable discharge under conditions other than honorable; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Department of Veterans Affairs benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.



12.  The unit commander subsequently recommended the applicant's separation from service and forwarded the separation action to the Special Court-Martial Convening Authority for action.  On 25 September 1973, the colonel serving as Commander, Headquarters Command, Fort Campbell, Kentucky, reviewed the proposed separation action and recommended approval for discharge based on unfitness.

13.  On 10 October 1973, the major general serving as Commander,
101st Airborne Division (Airmobile) and Fort Campbell, Fort Campbell, Kentucky, reviewed the proposed discharge action, including the request for waiver of the applicant’s rehabilitation transfer submitted by the applicant’s commander.  The commander approved the request for waiver of rehabilitation transfer and directed discharge of the applicant under the provisions of Army Regulation
635-200, paragraphs 13-5a(1) and 13-17e, and directed the applicant be furnished an Undesirable Discharge Certificate.  The applicant was discharged on 17 October 1973.

14.  The DD Form 214 (Report of Separation from Active Duty), issued to the applicant on the date of his separation, confirms that the applicant was issued an Undesirable Discharge Certificate.  This document also confirms that the authority for the applicant’s separation was Army Regulation 635-200, paragraph 13-5a(1) and 13-17e, and that the Separation Program Designator (SPD) was "28B."  The DD Form 214 further shows that, at the time of his discharge, he completed 1 year, 11 months, and 7 days active service and had 93 days time lost under Title 10, United States Code 972, during the period under review. 

15.  There is no evidence showing that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

16.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

17.  Army Regulation 600-8-22 provides, in pertinent part, that the Armed Forces Expeditionary Medal is authorized for participants in military operations within a specific geographic area during a specified time period.  An individual, who was not engaged in actual combat or equally hazardous activity, must have participated in operations or in direct support of operations for 30 consecutive or 60 nonconsecutive days.  Qualifying service for this award includes service in the Republic of Korea in direct support of military operations from 1 October 1966 to 30 June 1974.

18.  Army Regulation 600-8-22 (Military Awards) states that the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The area of eligibility and period of eligibility are as follows:  
	(1)  the area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles, 
	(2)  all air spaces above the land and water area.
The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. 
Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days, or meet the following criteria:  
	(1)  be engaged in combat during an armed engagement, regardless of the time in the area of eligibility, 
	(2)  wounded or injured in the line of duty and required medical evacuation from the area of eligibility, or
	(3)  participating as a regularly assigned air crewmember flying sorties into, out of, or within the area of eligibility in direct support of military operations.  Each day that one or more sorties are flown in accordance with these criteria will count as one day toward the 30 or 60-day requirement, and personnel who serve in operations and exercises conducted in the area of eligibility are considered eligible for the award as long as the basic time criteria is met.  Due to the extensive time period for KDSM eligibility, the nonconsecutive service period for eligibility remains cumulative throughout the entire period. 
Service members qualified for the Armed Forces Expeditionary Medal by reason of service between 1 October 1966 and 30 June 1974, in an area for which the KDSM was subsequently authorized are eligible for both the Armed Forces Expeditionary Medal and the KDSM.  Award of the KDSM for this time period is a one-time exception to policy to comply with section 543 of the National Defense Authorization Act of Fiscal Year 2003, Public Law 107-314. 

19.  Army Regulation 600-8-22, in pertinent part, sets forth requirements for award of basic marksmanship qualification badges.  The qualification badge is awarded to indicate the degree in which an individual has qualified in a prescribed record course, and an appropriate bar is furnished to denote each weapon with which the individual has qualified.  The qualification badges are in three classes:  Expert, Sharpshooter, and Marksman.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 13 (Separation for Unfitness or Unsuitability) of this Army regulation provides the procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in their case.

21.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’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.  Whenever there is doubt, it is to be resolved in favor of the individual.

22.  Army Regulation 635-200, paragraph 3-7b, 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.

23.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be  issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

24.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. 


This regulation identifies the SPD code of “28B” as the appropriate code to 
assign enlisted Soldiers separated under the provisions of Army Regulation
635-200, paragraph 13-5a, by reason of unfitness based on frequent involvement in incidents of a discreditable nature with civil or military authorities.  

25.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph 53 (Item 26 - Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) states, in pertinent part, to list all decorations, service medals, campaign medals, and badges awarded or authorized, omitting authorities cited therein.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded because he was young and messed up, he had no time to talk to anyone about his problems at the time, and he was not properly represented by a lawyer.
He also contends, in effect, that his discharge document should be corrected to show the awards and decorations he was authorized.

2.  Records show that the applicant was 18 years of age at the time he enlisted in the Army, 19 years of age when punishment was imposed under Article 15 on
4 occasions and when he went AWOL from his unit, and that he was 20 years of age when he returned from being AWOL.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service during this period.

3.  The evidence of record shows that the applicant’s company commander counseled the applicant on numerous occasions and advised him of the adverse consequences that might ensue from his actions.  The evidence of record also shows that the applicant was given every opportunity to improve his conduct and 
duty performance.  The evidence of record further shows that the applicant was advised of his rights, he consulted with legal counsel, and acknowledged that he had been advised of the basis for the contemplated action to separate him from the Army for unfitness.  In addition, the evidence of record shows the applicant was advised and acknowledged that he understood that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law because of an undesirable discharge.  There is no evidence of record showing the applicant was improperly counseled.  In fact, the evidence of record shows that the applicant voluntarily waived representation by counsel.  Thus, the evidence of record clearly refutes the applicant’s claim that he had no time to talk to anyone about his problems or that he was not offered representation by counsel.

4.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant’s record of service shows completion of 1 year, 11 months, and 7 days of his 3-year enlistment and 93 days (i.e., more than 3 months) of lost time during the period of service under review.  The evidence of record also shows the applicant wrongfully had in his possession an undetermined amount of marijuana, violated a lawful general regulation on at least 2 occasions, failed to report to his place of duty on at least 2 occasions, and wrongfully entered a building with intent to commit a criminal offense therein.  Thus, the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  Records show that the applicant served a qualifying period of service in the Republic of Korea in direct support of military operations for award of the Armed Forces Expeditionary Medal.  Therefore, he is entitled to correction of his records to show award of this service medal. 

7.  The evidence of record shows that, subsequent to 28 July 1954, the applicant served on active duty and completed a foreign service tour in the Republic of Korea.  Thus, the applicant served a qualifying period of service in the Republic of Korea for award of the Korea Defense Service Medal.  Therefore, the applicant is entitled to correction of his records to show award of this service medal.

8.  Records show the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  Therefore, it would be appropriate to correct his records to show this badge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___SLP__  ___JEA _  ___JRS _  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  correcting Item 26 of his DD Form 214 to delete “DNA”; and

	b.  correcting Item 26 of his DD Form 214 to add the Armed Forces Expeditionary Medal, Korea Defense Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

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 the authority, reason, and character of the applicant’s discharge.




____Shirley L. Powell____
          CHAIRPERSON




INDEX

CASE ID
AR20070004780
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/10/16
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19731017
DISCHARGE AUTHORITY
AR 635-200, Paragraph 13-5a(1) & 13-17e
DISCHARGE REASON
Defective Attitude
BOARD DECISION
GRANT PARTIAL 
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.