IN THE CASE OF:	  

		BOARD DATE:	        6 AUGUST 2009

		DOCKET NUMBER:  AR20090002682 


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 general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD).  He also requests that his record be corrected to show award of the Purple Heart, the Presidential Unit Citation, Congressional Unit Citation, and any other unit awards that his unit was authorized.

2.  The applicant states, in effect, that as a result of the hearing loss he incurred from being assigned to field artillery units while assigned to the Republic of Vietnam (RVN) he received a 10 percent disability rating from the Department of Veteran Affairs.  He states that he was not awarded the Purple Heart for the injuries he received while in the RVN nor did he receive the unit citations his unit received.  He also states that he served 11 months in the RVN and he had served honorably 3 years prior to being assigned to the RVN.  He concludes by stating that he saw too much death while in the RVN and as a result he suffers from post traumatic stress disorder.

3.  The applicant provides no additional documents 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 record shows he enlisted in the Regular Army on 
20 November 1967.   

3.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Record Brief) shows he was assigned to the following units during his tour in the RVN:

a. 24 September to 24 October 1970, the 509th Radio Research Group;

b. 29 October 1970 to 8 February 1971, Company A, 53rd Signal Battalion;

	c.  9 February to 10 February 1971, Headquarters and Headquarters Battery 
2nd Battalion, 12th Artillery Regiment, 1st Cavalry Division; and

	d.  11 February to 8 May 1971, A Battery, 6th Battalion, 27th Artillery Regiment, 1st Cavalry Division.

4.  Item 40 (Wounds) of the applicant’s DA Form 20 does not show that he was wounded while he was assigned to the RVN and the Vietnam Casualty Roster does not list the applicant's name.

5.  The applicant was punished under the Uniform Code of Military Justice (UCMJ) for the following offenses:

a. failure to go at the time prescribed to his place of duty, 30 June 1970;

   b. failure to go at the time prescribed to his place of duty and failure to obey a lawful order from a superior noncommissioned officer, 31 July 1970;

	c.  failure to go at the time prescribed to his place of duty, 1 December 1970; 




d. failure to obey a lawful order on two different occasions, 18 January 1971; 
and 

	e.  failure to obey a lawful order, possession of 4 ounces of marijuana, wrongful use of marijuana, and for absenting himself without authority from his unit on 31 March 1971.  

6.  On 5 January 1971, the applicant underwent a psychiatric evaluation at the 935th Medical Detachment in the RVN.  The examining psychiatrist diagnosed the applicant with inadequate personality: chronic-severe, manifested by difficulty with authority, depression, and “poor object relations.”  He was cleared for any administrative decision deemed appropriate by the command.  

7.  On 12 April 1971, the applicant’s unit commander advised the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) based on his record of UCMJ actions.

8.  On 12 April 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  The applicant indicated that he would not be submitting a statement in his behalf.

9.  On the same date, the unit commander recommended that the applicant be separated under the provisions of Army Regulation 635-212 for unsuitability.  The commander stated that his decision was based on the severe nature of the applicant's psychiatric report, his intentional absence without proper authority, his lost time, and a character and behavior disorder resulting in his failure to adjust to military service.  

10.  On 4 May 1971, the separation authority approved the applicant’s discharge for unsuitability and directed that the applicant receive a GD.  

11.  On 14 May 1971, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant confirms he was separated with a GD on 14 May 1971.  At the time of discharge, he held the rank of private/E-1 and had completed a total of
3 years, 5 months, and 23 days of creditable active military service.  He also had 2 days of lost time.  This document further shows the authority for separation was Army Regulation 635-212 and the reason for separation was unsuitability (character and behavior disorder).  

12.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he received the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.

13.  Item 30 (Remarks) of the applicant's DD Form 214 shows that he served in the RVN from 19 September 1970 to 14 May 1971.  

14.  Army Regulation 635-212, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, character and behavior disorder, apathy, enuresis and alcoholism.  Members separated under this authority could receive either an HD or GD.

15.  On 23 November 1972, Army Regulation 635-200 became the governing regulation for all administrative separations of enlisted personnel, which included the categories of separations previously governed by Army Regulation 635-212.  Department of the Army (DA) message, date/time group 302221Z March 1976, changed “character and behavior disorder” to “personality disorder.”  Army Regulation 635-200 was revised on 1 December 1976.

16.  A Department of the Army Memorandum, dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated.  It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrade of discharges based on personality disorders.  A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

17.  Department of Defense (DOD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, established uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, U.S. Code, section 1553, and this guidance applies to the Office of the Secretary of Defense and all the Military Departments.

18.  Army Regulation 635-200, paragraph 5-13 of the version currently in effect, provides, in pertinent part, when separation is because of a personality disorder, 

the service of a Soldier separated per this paragraph will be characterized as honorable unless an entry level separation is required under chapter 3, section III.  A characterization of service of under honorable conditions may only be awarded to a Soldier separating under these provisions if they had been convicted of an offense by a general court-martial or convicted by more than one special court-martial during the current enlistment.

19.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

20.  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 regulation does not show any such award as the Congressional Unit Citation.  It does not show that the Presidential Unit Citation was awarded to any unit the applicant was assigned to during a period of time he was assigned to the unit.

21.  Department of the Army Pamphlet 672-3 shows the 509th Radio Research Group was cited for award of the Meritorious Unit Commendation from 1 January 1969 to 31 October 1970, by Department of the Army General Orders (DAGO) Number 43, dated 1972.  

22.  Department of the Army Pamphlet 672-3 shows the 2nd Battalion, 12th Artillery Regiment, 1st Cavalry Division and the 6th Battalion, 27th Artillery Regiment, 1st Cavalry Division were both cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 21 February 1970 to 28 February 1971 by DAGO Number 42, dated 1972.  DAGO Number 42 shows that the Unit Citation was awarded to the 1st Cavalry Division and all of its subordinate units.

23.  Department of the Army Pamphlet 672-3 shows the 2nd Battalion, 12th Artillery Regiment, 1st Cavalry Division was also cited for award of the Civil Actions Honor Medal First Class Unit Citation for the period 31 August 1969 to  15 January 1971 by DAGO Number 51, dated 1971.

24.  Appendix B of Army Regulation 600-8-22 lists the campaigns for the Vietnam Conflict.  Based on the applicant's period of service in Vietnam, he participated in the Vietnam Counteroffensive Phase VII and the Consolidation I campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.
25.  Army Regulation 600-8-22 provides, in pertinent part, that the Presidential Unit Citation is awarded for extraordinary heroism in action.  A unit must display such gallantry, determination and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was separated under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).  His separation processing was accomplished in accordance with the applicable regulation at the time and his discharge accurately reflects his overall record of service.  

2.  However, under current regulations, members separated by reason of personality disorder (character and behavior disorder) must be issued an HD unless they have been convicted by a general court-martial or have more than one special court-martial.  Given the applicant’s disciplinary record his discharge is too harsh under current standards.  Therefore, it would be appropriate to upgrade his discharge to an HD in the interest of equity.

3.  The applicant contends he is entitled to award of the Purple Heart, the Presidential Unit Citation and other unit awards that his unit received were carefully considered. 

4.  The available evidence does not show the applicant was wounded or injured as a result of hostile action, or that he was treated for such wounds.  The applicant is not listed on the Vietnam Casualty Roster.  Regrettably, in the absence of corroborating evidence there is no basis for granting the applicant's requested relief.

5.  There is no evidence available nor did the applicant submit any evidence that shows the units he was assigned to received a Presidential Unit Citation.  Therefore, he is not entitled to have his record corrected to show this award.

6.  General Orders show the 509th Radio Research Group was awarded the Meritorious Unit Commendation while the applicant was assigned to this unit.  Therefore, he is entitled to correction of his record to show this award.

7.  General orders show the 2nd Battalion, 12th Artillery Regiment, 1st Cavalry Division and the 6th Battalion 27th Artillery Regiment, 1st Cavalry Division were 

awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation while the applicant was assigned to these units.  However, both units were a part of the 1st Cavalry Division; therefore, the applicant is only authorized one unit citation and correction of his record to show this unit award.

8.  General orders also show the 2nd Battalion, 12th Artillery Regiment, 1st Cavalry Division was awarded the Civil Actions Honor Medal First Class Unit Citation while the applicant was assigned to it which is not shown on his DD Form 214.  Therefore, he is entitled to correction of his record to show this award.

9.  The available evidence show 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 already-awarded Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  GRANT 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.  voiding his general discharge, issued on 14 May 1971 and providing him an honorable discharge for the same period of service; and

   b.  showing in addition to the awards shown on his DD Form 214 he is entitled to the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Civil Actions Honor Medal First Class Unit Citation and two bronze service stars to be affixed to his already-awarded 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 award of the Purple Heart, the Presidential Unit Citation, or a Congressional Unit Citation.




      _________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)                                         AR20090002682



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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