IN THE CASE OF:	  

		BOARD DATE:	        07 OCTOBER 2008

		DOCKET NUMBER:  AR20080006665 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be upgraded to an honorable discharge, and that his Purple Heart be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued at the time of his discharge on 6 June 1969, which will simply be referred to as his DD Form 214 throughout the remainder of these proceedings. 

2.  The applicant essentially states that at the time of his offenses which led to his discharge, he was with another person that he did not know, and that he was drunk and had no part in the crimes.  He also states that he did not know what his rights were and did not know what to do.  He further states that if he had received the right representation, he would not have been issued an undesirable discharge.  Further, he states that he had just returned from Vietnam and was suffering from post-traumatic stress disorder (PTSD).  Additionally, he believes that if the military had been more aware of his mental condition, he would have received better counseling and would not have received an undesirable discharge.

3.  The applicant provides his DD Form 214 and a Purple Heart certificate in support of this application.

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 records show that he was inducted into the Army of the United States on 30 November 1961.  They also show that he was granted a moral waiver for a past criminal record, and that prior to entering active duty, he was charged with petty larceny in March 1959, violation of probation law in April 1960, grand larceny in March 1961, and petty larceny in July 1961.  He subsequently enlisted in the Regular Army.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 111 (Light Weapons Infantryman), which was later converted into MOS 11B.  He departed for a tour in Germany on 3 May 1962.

3.  On 4 July 1963, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself on that date.  His punishment consisted of forfeiture of $20.00.

4.  On 3 September 1963, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself from his unit on 31 August 1963.  His punishment consisted of restriction to his company area for 7 days and 14 days of extra duty.

5.  The applicant returned to the continental United States on 11 May 1966, and was reassigned to Fort Carson, Colorado in June 1966.

6.  On 6 November 1966, the applicant departed for the Republic of Vietnam, and was initially assigned to Company A, 2nd Battalion, 8th Infantry Regiment, 4th Infantry Division.  He was awarded the Bronze Star Medal with "V" (for Valor) Device for heroism in connection with military operations against a hostile force on 14 March 1967.  On 6 August 1967, he was reassigned to Headquarters and Headquarters Company, 2nd Brigade, 4th Infantry Division.  He was awarded the Purple Heart for being wounded in action on 11 August 1967.  He returned to the continental United States on 11 October 1967, and was reassigned to Fort Benning, Georgia in November 1967.



7.  On 18 July 1968, the applicant accepted NJP under Article 15 of the UCMJ for violating a lawful regulation by cutting open an artillery simulator and lighting a match to the powder, which ignited the same, causing it to blow up in his face, resulting in first and second degree burns to his face and right arm.  His punishment consisted of forfeiture of $55.00.

8.  On 28 November 1968, the applicant was arrested by civil authorities for burglary.  On 13 December 1968, he posted bond and was released from confinement.  However, on 30 January 1969, while still under bond awaiting trial for his initial burglary offense, the applicant was again arrested for attempted burglary and possession of burglary tools.  On 20 February 1969, the applicant pled guilty to two counts of burglary and was sentenced to 4 years in prison for each count, with the sentences to run concurrently.

9.  In a letter, dated 18 March 1969, the applicant's commanding officer informed him that due to his conviction by a civil court, discharge proceedings had been initiated against him under the provisions of Army Regulation 635-206, and that he may discharged under other than honorable conditions.  He also advised the applicant of his rights, which included requesting appointment of military counsel to represent him and, in his absence, present his case before a board of officers, submitting statements in his own behalf, and waiving the foregoing rights.  

10.  On 12 May 1969, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action to accomplish his separation under the provisions of Army Regulation 635-206.  He waived consideration of his case before a board of officers, and waived representation by an attorney.  He elected not to submit statements in his own behalf.  He acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as a result of issuance of an undesirable discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.

11.  On 29 May 1969, the proper separation authority approved the applicant's separation under the provisions of Army Regulation 635-206, and directed that he be furnished a DD Form 258A (Undesirable Discharge Certificate).  He also directed that the applicant be reduced to the lowest enlisted grade.  On 6 June 1969, the applicant was discharged accordingly.  His DD Form 214 shows that he was awarded the Bronze Star Medal with "V" Device, the National Defense 


Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.

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

13.  The applicant essentially stated that at the time of his offenses which led to his discharge, he was with another person that he did not know, and that he was drunk and had no part in the crimes.  He also stated that he did not know what his rights were and did not know what to do.  He further stated that if he had received the right representation, he would not have been issued an undesirable discharge.  Further, he stated that he had just returned from Vietnam and was suffering from PTSD.  Additionally, he believes that if the military had been more aware of his mental condition, he would have received better counseling and would not have received an undesirable discharge.

14.  The applicant's DD Form 214 does not show that he was awarded the Purple Heart.  However, the applicant provided a certificate which shows that he was awarded the Purple Heart for being wounded in action on 11 August 1967.  His military records also contain Headquarters, 4th Infantry Division General Orders Number 4221, dated 4 December 1967, which awarded him the Purple Heart for being wounded in action on 11 August 1967.  Additionally, there is a corresponding entry on the Vietnam Casualty Roster which confirms that the applicant was wounded in action on 11 August 1967.

15.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.

16.  The applicant's DD Form 214 does not show that he was awarded the Good Conduct Medal.  However, he was awarded the Good Conduct Medal by Headquarters, 4th Armored Division General Orders Number 78, dated 14 June 1965.

17.  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 that at the time of the applicant’s assignment to 
the 2nd Battalion, 8th Infantry Regiment, the battalion was cited for award of the 

Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 3, dated 1970; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 53, dated 1970.

18.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel who had committed an act or acts of misconduct (i.e., fraudulent entry, conviction by civil authorities, absence without leave and desertion).  An undesirable discharge was normally considered appropriate.

19.  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 (emphasis added), 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.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge, and that his Purple Heart should be added to his 
DD Form 214.

2.  The applicant's contention that he was with another person that he did not know and was drunk at the time of his offenses which led to his discharge was considered, but not found to have any merit.  There is no evidence in the applicant's military records which suggests that anyone else was involved in the two burglaries that he was convicted of, or that he was drunk at the time of either of these burglaries.

3.  The applicant's contention that he did not know what his rights were and did not know what to do was also considered, but not found to have any merit.  The evidence shows that he waived his right to appeal his civilian conviction.  If he is 
referring to his right to appeal his discharge, he was provided the opportunity to present his case through counsel to a board of officers and to submit statements in his own behalf.  However, he waived those rights in writing.

4.  The applicant's contention that he would not have been issued an undesirable discharge if he had received the right representation was also found to be without merit, as he waived representation by counsel.

5.  The applicant's contention that he was suffering from PTSD at the time of his offenses was also considered.  However, the applicant did not provide any evidence to support that he was suffering from PTSD at the time of his offenses.  Additionally, the evidence of record clearly shows that the applicant had a history of theft prior to entering active duty, and established the applicant's propensity for committing crimes before he ever served in Vietnam.

6.  The applicant accepted NJP under Article 15 of the UCMJ on three occasions, and was apprehended by civil authorities and charged with burglary.  He was also apprehended by civil authorities while still under bond awaiting trial for his initial burglary offense for attempted burglary and possession of burglary tools.  The applicant pled guilty to two counts of burglary and was sentenced to 4 years in prison for each count, with the sentences to run concurrently.  There is no evidence of arbitrary or capricious actions by the applicant's command.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

7.  The applicant's entire record of service, which included being wounded in action and awarded the Bronze Star Medal with "V" Device for heroism was considered.  However, the applicant's offenses, when taken together, so far outweighs his record of service that upgrade of his discharge cannot be justified.

8.  Based on the applicant's extensive record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  As a result, he is not entitled to either an honorable or general discharge.

9.  The evidence of record clearly shows that the applicant was awarded the Purple Heart for being wounded in action on 11 August 1967.  Therefore, it would be appropriate at this time to correct his military records to show the award of the Purple Heart.

10.  General orders awarded the applicant the Good Conduct Medal; however, it is not listed on his DD Form 214.  Therefore, he is entitled to correction of his military records to show the award of the Good Conduct Medal.
11.  General orders awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the 2nd Battalion, 8th Infantry Regiment while the applicant was assigned to this battalion.  Therefore, it would be appropriate at this time to award him the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and to correct his military records to show these unit awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   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 award of the Purple Heart and the Good Conduct Medal; and

	b.  awarding him the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

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 his undesirable discharge to an honorable or general discharge.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006665



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ABCMR Record of Proceedings (cont)                                         AR20080006665



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