IN THE CASE OF:	

		BOARD DATE:	 25 November 2008 

		DOCKET NUMBER:  AR20080012303 


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 discharge under conditions other than honorable be upgraded to honorable.  He also requests, in effect, that his Bronze Star Medal, with "V" Device, be upgraded to a higher award.

2.  The applicant states, in effect, that he served his country honorably to include a tour in Vietnam for which he received several medals.  He also states that at the time of his discharge he had a drinking problem that started after his tour in Vietnam and got worse as time went on and he did not seek any help.  His commanding officer and first sergeant knew he had a problem, but did not bother to give or get him any help, but a reduction in rank.  To top everything off, his marriage was and did fall apart and it was too much to take.  He further, states, that currently he does not drink, has been sober over 20 years, and his military records should speak for him.

3.  The applicant provides no additional documentary evidence in support of his 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 he enlisted in the Regular Army on 15 September 1961 and was honorably discharged on 12 May 1969, for the purpose of immediate reenlistment.  He reenlisted in the Regular Army, in pay grade E-5, on 13 May 1969, for 6 years.  He completed his basic and advanced individual training and was assigned military occupational specialty 11B, light weapons infantryman.  He served in the Republic of Vietnam from 31 July 1966 to 29 July 1967.

3.  The applicant’s records contain General Orders Number 4173, dated 20 July 1967, awarding him the Bronze Star Medal, with "V" Device, for heroism in connection with military operations against a hostile force in the Republic of Vietnam on 31 May 1967.  

4.  There is no evidence in the applicant's records to show any orders were published or other evidence to indicate authorization for any award higher than the Bronze Star Medal, with "V" Device, i.e., the Medal of Honor, the Distinguished Service Cross, or the Silver Star.

5.  The applicant was promoted to staff sergeant, pay grade E-6, on 1 May 1973.

6.  On 18 November 1974, the applicant was punished under the provisions of Article 15, Uniform Code of Military Justice, for absenting himself from his unit from 12 to 13 November 1974.  His punishment included a reduction to pay grade E-5, a forfeiture of $150.00 pay per month for two months, and restriction and extra duty for 45 days.  

7.  On 7 May 1975, the applicant was reported absent without leave (AWOL) and was dropped from the rolls of his organization on the same day.  He was apprehended by the Federal Bureau of Investigation and returned to military control on 16 August 1977.  

8.  On 29 August 1977, a Charge Sheet (DD Form 458) was prepared by the Commander, Company A, US Army Personnel Control Facility, US Army Training Center and Fort Dix, Fort Dix, New Jersey.  In this charge sheet, the applicant was charged with two specifications of being AWOL from 12 December 1974 to 16 April 1975 and from 7 May 1975 to 16 August 1977.
9.  On 31 August 1977, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he stated that he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to it.  He acknowledged that he might be discharged under other than honorable conditions and the possible effect of such a discharge.  He also acknowledged that he might be ineligible for many or all benefits administered by the Veterans Administration and other Federal agencies.  He elected not to submit a statement in own behalf, acknowledged that he had been afforded the opportunity to consult with counsel, and was fully advised in the matter by counsel.  

10.  On 8 September 1977, the applicant's acting unit commander recommended approval of the applicant's request.  The unit commander stated that it was his opinion that the applicant had no motivation for continued service and would not respond to either counseling or rehabilitation.  He also stated that the applicant had a total of 964 days of bad time, was returned to military control through apprehension by civil authorities, and court-martial charges had been preferred.

11.  On 12 September 1977, the applicant's commander recommended approval of the applicant's request and further recommended that an other than honorable discharge be issued.

12.  On 13 September 1977, the appropriate separation authority approved the applicant's request for discharge for the good of the service and directed the applicant be reduced to pay grade E-1 and that an Under Other Than Honorable Conditions Discharge Certificate be issued.

13.  The applicant was discharged on 27 September 1977, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, with an Under Other Than Honorable Conditions Discharge Certificate.  He was credited with 5 years, 8 months, and 26 days net active service and 13 years, 9 months, and 2 days of total active service.  He also was credited with 961 days of time lost.

14.  Entries on the applicant’s DD Form 214, Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) list the following awards:  the National Defense Service Medal; the Good Conduct Medal (4th Award); the Combat Infantryman Badge; the Parachutist Badge; the Vietnam Service Medal; the Republic of Vietnam Campaign Medal, with 60 Device; the Bronze Star Medal, with "V" Device; the 
Expert Marksmanship Qualification Badge, with Rifle Bar (M14 Rifle); the Expert Marksmanship Qualification Badge, with Rifle Bar (M16 Rifle); the Senior Parachutist Badge; and the Master Parachutist Badge.  

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

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, could submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record. 

17.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

18.  Army Regulation 635-200, paragraph 3-7b, also 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.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

20.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Medal of Honor is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty while engaged in an action against an enemy of the United States.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life.  Incontestable proof of the performance of the service is required.

21.  Army Regulation 600-8-22 also provides, in pertinent part, that the Distinguished Service Cross is awarded to a person, who while serving in any capacity with the Army, distinguished himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.

22.  Army Regulation 600-8-22 further provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The applicant's contentions were considered; however, they do not support an upgrade of his discharge.  The evidence of record does not show the applicant ever applied for help for an alleged alcohol dependency problem prior to his AWOL.  It appears he chose to just go AWOL as a means of solving his problems.  His entire record of service was reviewed and based on that review, the reason for discharge was determined to be proper and equitable; further, it has been determined that the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his discharge.

3.  The evidence also shows that court-martial action was pending against the applicant for his period of AWOL from 7 May 1975 to 16 August 1977.  He voluntarily requested discharge in lieu of facing a court-martial and instead waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and/or wrongfully discharged.  His request for discharge was approved and it was directed that he receive an Under Other That Honorable Conditions discharge.  

4.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

5.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

6.  The applicant also requested an upgrade of his Bronze Star Medal, with "V" Device.  While the available evidence is insufficient for awarding the applicant any award higher than the Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

7.  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.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _ 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)                                         AR20080012303



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ABCMR Record of Proceedings (cont)                                         AR20080012303


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