RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 April 2008
	DOCKET NUMBER:  AR20070018865 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 two separate applications, a review of his military records to determine if he is entitled to receive additional awards and decorations that are not currently reflected on his Report of Transfer or Discharge (DD Form 214), and to determine if the grade, rate or rank and pay grade reflected on his DD Form 214 is correct.

2.  The applicant states that he believes he earned medals and ribbons that are not included on his DD Form 214.  He further states that he was furnished a reenlistment bonus and was informed that his rank and pay grade would go from specialist E-4 to specialist E-5.

3.  The applicant provides in support of his applications, a copy of his DD Form 214 for the period 30 January 1968 through 30 October 1969; and a copy of his DD Form 214 for the period 30 October 1969 through 8 April 1970.

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.  On 30 January 1968, the applicant enlisted in the Regular Army in Charlotte, North Carolina, for 2 years, in the pay grade of E-1.  He successfully completed his training as a carpenter. 

3.  The applicant was promoted to the pay grade of E-2 on 30 May 1968, and he was promoted to the pay grade of E-3 on 19 August 1968.  He was transferred to Vietnam on 4 October 1968.




4.  The applicant was promoted to the pay grade of E-4 on 24 November 1968, while he was in Vietnam.  On 13 April 1969, the applicant returned to the Continental United States and he was admitted the United States Army Hospital, Fort Jackson, South Carolina.

5.  On 30 October 1969, the applicant was honorably released from active duty (REFRAD), for the Convenience of the Government, for the purpose of immediate reenlistment.  The DD Form 214 that he was furnished at the time of his REFRAD shows he was awarded the National Defense Service Medal and the Vietnam Service Medal.

6.  The applicant reenlisted in the Army on 30 October 1969, for 6 years, in the pay grade of E-4, and he was paid a reenlistment bonus.  A review of his enlistment contract fails to show that he was ever promised a promotion to pay grade E-5 in connection with his reenlistment.

7.  On 24 February 1970, the applicant was referred to the Mental Hygiene Consultation Service for a mental status evaluation.  The attending psychiatrist determined that the applicant had no mental defects sufficient to warrant separation from the service under the provisions of Army Regulation 635-40; that he was mentally responsible, both to distinguish right from wrong and to adhere to the right; and that he had the mental capacity to understand and to participate in board proceedings.  The psychiatrist diagnosed the applicant as having a paranoid personality, chronic, moderate, manifested by destructive behavior and impulses, emotional liability and feelings of persecution.  The psychiatrist noted that the applicant's condition represented a long-standing, refractory personality disorder which was not amenable to disciplinary action, psychotherapy, reclassification or reassignment.  The psychiatrist also commented that the applicant could be dangerous to others at unpredictable times, and that his condition existed prior to service.  The psychiatrist cleared the applicant for any administrative or judicial action deemed appropriate by his command.

8.  The applicant was recommended for discharge on 18 March 1970, under the provision of Army Regulation 635-212, for unsuitability.  Information contained in his recommendation for discharge shows that his conduct and efficiency ratings were good from 21 May 1969 through 18 March 1970. 

9.   The appropriate authority approved the recommendation for discharge.  Accordingly, on 8 April 1970, the applicant was discharged in the pay grade of 
E-4, under the provisions of Army Regulation 635-212, for unsuitability.  He was furnished a General Discharge Certificate.

10.  The DD Form 214 that he was furnished at the time of his discharge shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal w/Device 1960, the Marksman Marksmanship Qualification Medal (Rifle M-14), the Expert Marksmanship Qualification Badge (Rifle M-16), and one Overseas Service Bar.

11.  There are no orders in the available records promoting the applicant to the pay grade of E-5.

12.  Based on the applicant’s period of Vietnam Service Appendix B of Army Regulation 600-8-22 shows he would have served during the following campaigns:  the Vietnam Counteroffensive campaign, Phase V, which extended from 1 July through 1 November 1968; the Vietnam Counteroffensive campaign, Phase VI, which extended from 2 November 1968 through 22 February 1969; and the Tet 69 Counteroffensive campaign, which extended from 23 February through 8 June 1969.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders (DAGO) Number 8, dated 1974.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's reenlistment contract that shows he was promised a promotion to the pay grade of E-5 in connection with his reenlistment obligation.

2.  The applicant's records do not show that he was promoted beyond the rank and pay grade of specialist four (E-4).  He was promoted to the pay grade of E-4 on 24 November 1968 and he was serving in that pay grade at the time of his discharge on 8 April 1970.  His rank and pay grade were properly annotated on his DD Form 214.  Therefore, there is no basis for granting this portion of the applicant's request. 

3.  However, the records do show the unit to which the applicant was assigned was cited in DAGO Number 8 for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, this award should be added to his DD Form 214.

4.  Additionally, the applicant participated in three campaigns while he was in Vietnam, and in accordance with the applicable regulation, he is entitled to three bronze service stars for inclusion on his Vietnam Service Medal.

5.  In view of the foregoing, it would now be appropriate to correct the applicant's records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__CD __  __LMD__  __JCR___   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 amending his DD Form 214 for the period ending 8 April 1970 to show that he was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and three bronze service stars for inclusion on his Vietnam Service Medal.

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 correcting his DD Form 214 to show that he was discharged in the rank and pay grade of specialist five (E-5). 




___Carmen Duncan  ___
      CHAIRPERSON