IN THE CASE OF:	  

		BOARD DATE:	       9 December 2008

		DOCKET NUMBER:  AR20080013929 


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, reconsideration of his previous request to upgrade his undesirable discharge.  

2.  The applicant states, "I was in Vietnam in March 1969.  One day we were out on patrol.  That night, one of the men set off a claymore mine and it did something to his hearing, so he had to go to the hospital.  He had the M-60.  The Sgt. told me to give him my M-16 and I had the M-60.  The next day we were still out and I test fired it and it did not fire.  So I told the Sgt. about it and he said we were going in that day.  But we were out till night and we got into a firefight.  We had wounded and killed.  I got hit in the right thigh, leg and ankle by a grenade.  The two men next to me lost legs.  I tried to help the medic with them.  I try my best, but it was no good.  I went to the hospital for 30 days.  So when I got back to my base camp, my Sgt. told me we were going back out.  I told him my leg hurt and I was not going back out.  He told me I will get a court-martial and I got discharged under other than honorable conditions.  Vietnam changed my whole life."

3.  The applicant also states. "I did my duty.  I risked my life.  I was almost killed. I served my country.  I was sprayed with Agent Orange.  When I came home I was having bad dreams about the war.  I started drinking a lot.  I was going to jail all the time.  I have seizures.  I have had a heart attack.  I had two surgeries on the leg I was wounded in.  I have a blood disease and arthritis. I cannot walk too good.  I cannot work.  Please can you correct my discharge and upgrade [it]."
4.  The applicant provides letters from the pastors of two churches.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070003494 on
14 August 2007.  His current submission is new evidence and argument that requires reconsideration.

2.  The applicant’s record shows that, notwithstanding a prior offense of carrying a concealed weapon, he was inducted into the Army of the United States, for a period of 2 years.  He commenced active service on 10 February 1968, completed training at Fort Dix, New Jersey and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was advanced to pay grade E-2 on 1June 1968.  

3.  The applicant was absent without leave (AWOL) from 2 July 1968 to 
20 September 1968 (79 days).  He pled guilty to that offense at a Special Court-martial and was sentenced to confinement for 6 months (suspended for 
6 months).  

4.  On 20 December 1968, he completed a DA Form 2496 (Disposition Form) to the effect that he had a brother serving in Vietnam, but that he elected to waive his, "right to request Stateside assignment and to accept this tour in Vietnam." 

5.  The applicant arrived in Vietnam on 28 February 1969 and was assigned to 
A Company, 4th Battalion, 39th Infantry Regiment, 9th Infantry Division.  

6.  His DA Form 20 (Enlisted Qualification Record), Item 40 (Wounds) shows he sustained gunshot and fragment wounds to his right thigh on 23 March 1969.  Item 41 (Awards and Decorations) shows he was awarded the Army Commendation Medal with "V" Device for heroism on 15 March 1969.  Subsequently, separate 9th Infantry Division orders awarded him the Army Commendation Medal with first and second Oak Leaf Clusters for meritorious service.

7.  He was awarded the Combat Infantryman Badge on 4 June 1969.

8.  On 16 June 1969, the applicant was convicted by a special court-martial of willful disobedience of a lawful order of a second lieutenant to go to the field on 
26 May 1969.  He was sentenced to a forfeiture of $73.00 pay per month for 
6 months and confinement for 6 months.  The convening authority approved the sentence, but suspended the confinement in excess of 1 month. 

9.  On 26 June 1969, the company commander recommended administrative discharge under the provisions of Army Regulation 635-212.  The letter of recommendation detailed the applicant's misconduct and enclosed five signed statements from the applicant's chain of command describing his bad conduct and disruptive behavior.  Neither the letter itself, nor any of the statements mentioned the applicant's three Army Commendation Medals, one for heroism, the wounds he sustained in action or his Combat Infantryman Badge.

10.  On 3 July 1969, a psychiatric evaluation determined that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The psychiatrist also diagnosed the applicant as having an immature personality.  
 
11.  The applicant consulted with legal counsel, on 4 July 1969.  After being advised of the basis for the contemplated separation for unfitness, its effects and the rights available to him; he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel.  The applicant did not submit a statement in his behalf.

12.  On 13 July 1969, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-212 for unfitness and that he receive an Undesirable Discharge Certificate.  

13.  On 13 July 1969, the applicant was separated under the provisions of Army Regulation 635-212 for unfitness with an undesirable discharge.  He completed a total of 1 year, 1 month and 6 days of creditable active military service and he accrued a total of 134 days of lost time due to being AWOL and in confinement.

14.  The applicant's DD Form 214 shows he was awarded the Army Commendation Medal, the Combat Infantryman Badge, the Vietnam Service Medal, and the National Defense Service Medal.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions. 

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

17.  In a letter provided on behalf of the applicant, a pastor states the applicant is employed at a shoe shine stand he visits regularly, the applicant is stable and he is trying to better himself.  In the second letter the applicant provided another pastor offers himself as a character witness who knows the applicant to be trustworthy.  The pastor describes the applicant as being a successful youth counselor and a competent dedicated individual that is concerned about his financial situation and his lack of health insurance.

18.  On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

19.  On 8 October 1977, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to Department of Veterans Affairs (VA) benefits, unless they had been entitled to such benefits before their SDRP review.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's misconduct, especially in the combat environment of Vietnam, warranted his separation.  His presence was a detriment to good order and discipline and he had to be removed.
2.  Nevertheless, in light of his combat service in that same environment, as evidenced by his three Army Commendation Medals (one for Heroism) within his first month of combat; the characterization of his service as having been served under other than honorable conditions is too harsh. 

3.  The fact the applicant voluntarily waived stateside assignment and accepted orders to Vietnam mitigates his misconduct.  

4.  Additionally, the existence of the immature personality disorder further mitigates the applicant's misconduct.  

5.  Furthermore, the chain of command's failure to mention the applicant's extraordinary combat performance (three Army Commendation Medals, a "V" device, and combat incurred wounds in his first month in Vietnam) would be considered prejudicial to the applicant during the discharge process.

6.  The SDRP/Public Law 95-126 processes adds still another layer of injustice to the current characterization of the applicant's service.  His discharge should have been reviewed under the SDRP.  He did not need to apply.  Under the rules, then in effect, his discharge could have been upgraded based on his combat wound and personal decorations.  The VA would have been forced to stop any benefits and presumably he would have applied for a Public Law 95-125 review.  Experience has shown in similar cases that these usually resulted in affirmation of the upgrade.

7.  In consideration of all the facts and circumstances of this case the applicant's discharge should be upgraded to general under honorable conditions.  The reason and authority should remain unchanged.

8.  Further, the applicant's DD Form 214 should also be corrected to show he was awarded three Army Commendation Medals, one with a "V" device.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20070003494, dated 14 August 2007.  As a result, the Board recommends relief in that all Department of the Army records of the individual concerned be corrected by recharacterizing his service to show he was separated with a general discharge under honorable conditions and by correcting his DD Form 214 to show he was awarded the Army Commendation Medal with "V" Device and 2d Oak Leaf Cluster in lieu of the Army Commendation Medal now listed on his DD Form 214. 




      _______ _   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)                                         AR20080013929



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ABCMR Record of Proceedings (cont)                                         AR20080013929



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