RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070011691 


	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

Ms. Phyllis B. Mackey 

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 discharge characterized as under other than honorable conditions (UOTHC) be changed to an honorable discharge and to have all awards he received while serving in Vietnam added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

2.  The applicant states, in effect, that while he was stationed in Vietnam, he was having problems with his wife who was in the states.  He requested and was granted leave.  The applicant did not return to his assigned unit at the appointed time.  Therefore, he was considered AWOL (absent without leave).  He turned himself in and asked to be discharged.  The applicant states, that when he received his discharge it was “for the good of the service.”  He also states that he was told that after six months his discharge would be upgraded to honorable.  The applicant states that he should receive credit for all awards he was awarded while serving with the 9th Infantry Division in Vietnam.  The applicant is submitting this request in hopes of being entitled to receive medical services through the VA (Veterans Administration).

3.  In support of his request, the applicant provides a written explanation of why he submitted his request; a copy of his DD Form 214; a copy of General Order (GO) Number 2222 and certificate, dated 25 February 1969, awarding him the Purple Heart; a copy of GO Number 4222 and certificate, dated 9 April 1969, awarding him the Bronze Star Medal for Heroism; and a copy of Special Orders Number 59, promoting him to Sergeant.

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 record shows he enlisted in the Regular Army (RA) on 12 March 1968.  The applicant successfully completed basic combat training at Fort Bragg, North Carolina and advanced individual training at Fort Gordon, Georgia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.  

3.  The applicant served in Vietnam from 5 November 1968 to 4 November 1969, with Company B, 3rd Battalion, 39th Infantry Regiment, 9th Infantry Division.  

4.  General Orders Number 2222, issued by Headquarters, 9th Infantry Division, dated 25 February 1969, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force, on
23 February 1969.   

5.  General Orders Number 4222, issued by Headquarters, 9th Infantry Division, dated 9 April 1969, awarded the applicant the Bronze Star Medal for Heroism, for heroism in connection with military actions involving conflict with an armed hostile force in the Republic of Vietnam. 

6.  The applicant's DD Form 214 shows he was awarded the Sharpshooter Marksmanship Qualification Badge, with Automatic Rifle Bar (M-16 Rifle); the Marksman Marksmanship Qualification Badge, with Rifle Bar (M-14 Rifle); and the Second Class Gunner Marksmanship Qualification Badge, with Machine Gun Bar (M-60 Machine Gun).  His DD Form 214 does not show any additional awards.  

7.  Item 41 (Awards and Decorations), of the applicant's DA Form 20 (Enlisted Qualification Record), shows he was awarded:  the Purple Heart; the National Defense Service Medal; the Vietnam Service Medal; the Combat Infantryman Badge; the Republic of Vietnam Gallantry Cross with Palm, Unit Citation; the Bronze Star Medal, with “V” Device; the Army Commendation Medal, with First Oak Leaf Cluster; the Air Medal; and the Republic of Vietnam Campaign Medal, with Device “60.”  These awards are not shown on the applicant's DD Form 214.

8.  While in the Republic of Vietnam the applicant participated in four campaigns: the Vietnam Counteroffensive, Phase VI, which extended from 2 November 1968 through 22 February 1969; the Tet 69 Counteroffensive, which extended from 
23 February through 8 June 1969; the Vietnam Summer-Fall 1969, which extended from 9 June through 31 October 1969; and the Vietnam Winter-Spring 1970, which extended from 1 November 1969 through 30 April 1970.  Army Regulation 600-8-22 provides that a bronze service star is authorized for the Vietnam Service Medal for participation in each campaign.  Therefore, the applicant is entitled to four bronze service stars for his campaign participation.

9.  Department of the Army Pamphlet 672-3 shows that the applicant's unit, the 3rd Battalion, 39th Infantry Regiment, 9th Infantry Division, was cited for award of the Republic of Vietnam Gallantry Cross with Palm, Unit Citation, by DAGO Number 59, dated 1969, and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation, by DAGO Number 43, dated 1970.  These unit awards are not shown on the applicant’s DD Form 214. 

10.  Item 22 c. (Statement of Service/Foreign and/or Sea Service), of the applicant’s DD Form 214, shows that he was not given credit for foreign and/or sea service; however, Item 31 (Foreign Service), of the applicant’s DA Form 20, shows that he served in Vietnam from 5 November 1968 to 4 November 1969;  
therefore, the applicant should be credited with 1 year of oversea service and it should appear on his DD Form 214.

11.  On 24 July 1968, the applicant was convicted by a special court-martial of being AWOL from 18 June 1968 to 20 June 1968 and from 1 July 1968 to 3 July 1968 and for breaking restriction.  His sentence consisted of confinement at hard labor for 2 months and a forfeiture of pay for 2 months.  No previous convictions were considered.

12.  The applicant was promoted to Private First Class/E-3, on 15 November 1968; Specialist/E-4, on 31 January 1969 and to Sergeant/E-5, on 28 February 1969. 

13.  On 4 May 1969, the applicant received nonjudicial punishment under Article 15, UCMJ, for disobeying a superior commissioned officer.  He was reduced in rank to E-4 for misconduct.  

14.  On 28 May 1969 he received nonjudicial punishment under Article 15, UCMJ, for disobeying a superior non-commissioned officer.  His punishment was forfeiture of pay for one month.   

15.  Item 26(a), Non-Pay Periods Time Lost, of the applicant’s DD Form 214, shows that he had several periods of lost time: from 18 June 1968 to 26 June 1968; from 1 July 1968 to 23 July 1968; from 18 June 1969 to 4 June 1970 and from 7 August 1970 to 2 September 1970. 

16.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.   However, the applicant submitted a copy of his DD Form 214 which shows that on 
14 September 1970, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service.  He was furnished an undesirable discharge.  He had a total of 1 year, 4 months and 
12 days of creditable service and 411 days of time lost due to AWOL and confinement.

17.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate.  

18.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

19.  Army Regulation 670-1, in effect at the time, governed the requirements for the overseas service bar.  In pertinent part, it provided that a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States.  One overseas service bar is authorized for each six-month period served in the Republic of Vietnam.  To calculate the entitlement, both the month of arrival and month of departure are counted as a whole month no matter the number of days in that month that were spent in the hostile fire zone.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was awarded:  the Purple Heart; the National Defense Service Medal; the Vietnam Service Medal; the Combat Infantryman Badge; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; the Bronze Star Medal, with “V” Device; the Army Commendation Medal, with First Oak Leaf Cluster; the Air Medal, and the Republic of Vietnam Campaign Medal, with Device “60.”  The applicant is entitled to have these awards added to his DD Form 214.

2.  General Orders Number 2222, dated 25 February 1969, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile enemy on 23 February 1969.  Therefore, he is entitled to have this award added to his DD Form 214.  

3.  General Orders Number 4222, dated 9 April 1969, awarded the applicant the Bronze Star Medal, with “V” Device, for heroism in connection with military actions involving conflict with an armed hostile force in the Republic of Vietnam on 24 February 1969.  Therefore, he is entitled to have this award added to his DD Form 214.  
 
4.  While in Vietnam, the applicant participated in four campaigns.  He is therefore, entitled to award of four bronze service stars to be affixed to his already awarded Vietnam Service Medal.
 
5.  While in Vietnam, the applicant served in a unit, which was awarded the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation.  These unit awards are not shown on his DD Form 214.  He is entitled to these unit awards and to have them added to his DD Form 214 at this time.

6.  Even though the applicant did not specifically request correction of his Foreign Service credit, it is required to support the award of Vietnam service related awards. The applicant served in Vietnam from 5 November 1968 to 4 November 1969, with Company B, 3rd Battalion, 39th Infantry Regiment, 9th Infantry Division, therefore, he is entitled to be credited with 1 year of Foreign Service for the time he served in Vietnam and to have this added to his DD Form 214.

7.  The applicant served in Vietnam for one year, including the month of his arrival in, and the month of his departure from Vietnam.  He is entitled to award of two overseas service bars and to have these bars added to his DD Form 214.

8.   All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.   However, the applicant submitted a copy of his DD Form 214 which shows that on 
14 September 1970, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service.  He was furnished an undesirable discharge.  

9.  The evidence of record shows that the applicant accumulated a total of 
411 days of lost time due to AWOL and confinement.  An absence of this duration is serious and there is insufficient evidence to show that he now deserves an upgrade of his discharge.  

10.  The applicant has provided insufficient evidence to show that neither his discharge nor his reduction in rank were unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

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

12.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement concerning his request pertaining to the characterization of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___QS__  __WDP__  __RML__  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.  showing the applicant was awarded the Purple Heart; the National Defense Service Medal; the Vietnam Service Medal, with four bronze service stars; the Combat Infantryman Badge; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; the Bronze Star Medal, with “V” Device; the Army Commendation Medal, with First Oak Leaf Cluster; the Air Medal; the Republic of Vietnam Campaign Medal, with Device “60”; and two Overseas Service Bars, and adding these awards to his DD Form 214; and 

b.  crediting the applicant with 1 year of Foreign Service and showing this service on his DD Form 214.   

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 applicant’s discharge characterized as under other than honorable conditions to an honorable discharge.  


						____William D. Powers_____
						      CHAIRPERSON 



INDEX

CASE ID
AR20070011691
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19700914
DISCHARGE AUTHORITY
AR 635-200 SPN 246 . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.