IN THE CASE OF:	  

		BOARD DATE:	  29 July 2008

		DOCKET NUMBER:  AR20080007285 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.  He also requests by using a DA Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) that his separation document (DD Form 214) for the period ending 19 April 1972 be corrected to show the  
10 months he served in combat in Vietnam and the medals he received.

2.  The applicant states, in effect, he served for 10 years as a professional Soldier and his record shows he had nothing that would make his last reenlistment under other than honorable conditions.  He had received two Army Good Conduct Medals, but one was removed for his inability to teach the troops. He was once an E-4 and then a sergeant, but during his last days of service he was absent without leave (AWOL) for 2 days.  He received a Reentry (RE) Code of RE-3B, but no one explained he could have received a waiver to reenlist.  He later found that he was not given an honorable discharge on his final DD Form 214.

3.  The applicant provides a copy of a DA Form 293, personal statement, his DD Form 214 for the period ending 6 April 1981, two United States of America Certifications of Military Service, DD Forms 214 for the periods ending 19 April 1972 and 29 May 1978, and an Initial Psychological Assessment, dated 18 June 2004.



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 record shows that he was inducted into the U.S. Army on 24 March 1970.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 36K (Field Wireman).  

3.  He served on active duty until he was honorably discharged on 19 April 1972. He completed 2 years and 26 days of total active service.  He immediately reenlisted on 20 April 1972 for 6 years.  

4.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record, Part II) shows that he served in the Republic of Vietnam during the period  
14 October 1970 to 17 August 1971, for a period of 10 months.

5.  Item 9 (Awards, Decorations and Campaigns) of his DA Form 2-1 shows the award of the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Overseas Service Bar  
(1), Good Conduct Medal (2nd Awd), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M16).   Item 9 of his DA Form 2-1 also shows campaign credit for Vietnam Counteroffensive Phase VII and Consolidation I.

6.  Item 22c (Foreign And/Or Sea Service) of his DD Form 214 for the period ending 19 April 1972 contains no entry for foreign service credit.

7.  Item 17c (Date of Entry) of his DD Form 214 for the period ending 19 April 1972 shows the entry "24 Mar 72."  However, this entry should have been left blank since the applicant was inducted.

8.  Item 22a(1) (Net Service This Period) of his DD Form 214 for the period ending 19 April 1972 shows the entry "00 00 26" (no years, no months, 26 days). However, this entry should have been 2 years and 26 days for the period of 
24 March 1970 to 19 April 1972.

9.  Item 22a(2) (Other Service) of his DD Form 214 for the period ending 19 April 1972 shows the entry "02 00 00."  However, this entry should have been left blank, because his record does not show he had prior service.

10.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for the period ending 19 April 1972 shows the entry "None."

11.  Between 17 June 1974 and 30 December 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for striking his wife in her head and shoulders with his fist, failing to go to his appointed place of duty, being disrespectful to a superior commissioned officer, and for being drunk and disorderly.  

12.  On 13 November 1975, the applicant accepted NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed placed of duty, his room for a "GI" party (cleaning the billets).

13.  Between 29 March 1979 and 20 December 1979, the applicant accepted NJP under the provisions of Article 15, UCMJ, twice for willfully disobeying a lawful order from a superior noncommissioned officer by entertaining female guests at the sleeping quarters of the troop billets, disobeying a direct command by refusing to "Stand at Ease" or sit down, and allowing an unlicensed Soldier to drive his privately own vehicle (POV). 

14.  On 17 July 1980, the applicant accepted NJP under the provisions of Article 15, UCMJ, for disobeying a lawful order from a superior commissioned officer, for carrying a locking blade knife, and for being drunk on duty.

15.  The applicant's discharge packet was not included in his records.  However, the DD Form 214 he was issued shows he was discharged under other than honorable conditions for misconduct-frequent incidents of a discreditable nature with civil or military authorities under the provisions of Army Regulation  
635-200 (Personnel Separation), Chapter 14-33b(1) on 6 April 1981.  He had completed a total of 2 years, 10 months, and 2 days of net active service this period and accrued 5 days of lost time.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below  
E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

17.  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.

18.  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.

19.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directed that total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater in which service was performed be entered in Item 22c, e.g., "Republic of Vietnam."

20.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Campaign Medal.  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Qualifying service outside the geographical limits of the Republic of Vietnam required the individual to provide direct combat support to the Republic of Vietnam and Armed Forces.

21.  The statement that the applicant submitted describes his traumatic experiences of the War, which he states led to his drug and alcohol abuse problems.  In the statement he describes himself as a professional Soldier that received awards and decorations for his service.  He was an E-4 then an  
E-5, who was in charge of the Drug and Alcohol Education with his own problems, which led to him being relieved of duty and the Army Good Conduct Medal being taken away (due to an NJP).  He states that he was assigned to Fort Campbell, Kentucky in November 1980 when he was having problems with a divorce and a second marriage.  He tried to stop drinking alcohol, but the memories of Vietnam wouldn't go away so he continued to drink.  He had no idea the 2 days of AWOL could have such a dishonoring affect on his record.  He did not know he could have received a waiver for the RE-3B and still be in the service until he retired with at least 20 years of active duty.  He is with his fourth wife, who is helping him daily as a recovering alcoholic for 4 1/2 years.

22.  The initial psychological assessment that the applicant submitted described the applicant as having a chronic alcohol abuse problem.  The assessment summarized his condition as borderline personality disorder, symptoms of depression, Posttraumatic Stress Disorder (PTSD) including intrusive images and memories of his military experiences in Vietnam, and memory loss and concentration.  However, there is no indication of clear psychotic episodes, other than when the applicant is under the influence of substances.  The recommendation was for the applicant to receive counseling for depression, symptoms of PTSD, and maintenance of sobriety.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge.  He also contends that his DD Form 214 should be corrected to show the 10 months he served in combat In Vietnam and to show the medals he received.

2.  The applicant's records contain no evidence of any error or injustice as it pertains to his discharge from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 14.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His numerous acts of misconduct render his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  The applicant's statement and psychological assessment are noted, however, they do not outweigh his record of indiscipline.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

6.  Evidence shows that the applicant served in the Republic of Vietnam during the period of 14 October 1970 to 17 August 1971 for 10 months.  Therefore, he is entitled to correction of his records to show 10 months "Republic of Vietnam" in Item 22c of his DD Form 214 for the period ending 19 April 1972.

7.  Evidence shows that the applicant was inducted in the U.S. Army on  
24 March 1970 and was discharged on 19 April 1972.  Therefore, the entry in Item 17c, Date of Entry of his DD Form 214 was made in error.  As a result, Item 17c of his DD Form 214 for the period ending 19 April 1972 should be corrected by deleting the entry in Item 17c.

8.  Item 22a(1), Net Service This period, of his DD Form 214 should be corrected to show the entry 2 years and 26 days for the period 24 March 1970 to 19 April 1972.

9.  Item 22a(2), Other Service, of his DD Form 214 should be corrected to delete the entry, because there is no evidence that the applicant had any prior service.

10.  Evidence shows the applicant was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Overseas Service Bar (1), Good Conduct Medal (2nd Awd), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M16).  Therefore, he is entitled to correction of his records to show these awards in Item 24 of his DD Form 214 for the period ending 19 April 1972.

11.  Evidence shows the applicant is authorized the award of the Republic of Vietnam Campaign Medal for his service during the period of 14 October 1970 to 17 August 1971.  Therefore, he is entitled correction of his records to show the Republic of Vietnam Campaign Medal in Item 24 of his DD Form 214 for the period ending 19 April 1972.

12.  Evidence shows the applicant participated in two campaigns during his service in the Republic of Vietnam.  Therefore, he is entitled to two bronze service stars to be affixed to his Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X___  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 10 months "Republic of Vietnam" in Item 22c of his DD Form  
214 for the period ending 19 April 1972; 

     b.  showing 00 00 00 in Item 17c of his DD Form 214 for the period ending  
19 April 1972;

     c.  showing 2 years and 26 days in Item 22a(1) of his DD Form 214 for the period ending 19 April 1972;

     d.  showing 00 00 00 in Item 22a(2) of his DD Form 214 for the period ending 
19 April 1972; and

     e.  showing National Defense Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Campaign Medal, Vietnam Service Medal, Good Conduct Medal (2nd Awd), Overseas Service Bar (1), Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M16), and two bronze service stars to be affixed to the Vietnam Service Medal in Item 24 of his DD Form 214 for the period ending 19 April 1972.

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 upgrade of the under other than honorable conditions discharge dated 6 April 1981.




      _______ _   X_______   ___
               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)                                         AR20080007285



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ABCMR Record of Proceedings (cont)                                         AR20080007285



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