BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090004302 


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 items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) on his DD Form 214 (Report of Transfer or Discharge) for the period ending 9 May 1969 be corrected to show specialist four (SP4)/E-4; and that item 
24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on this DD Form 214 be corrected to show award of the Purple Heart.  He also requests that his undesirable discharge be upgraded to a general discharge.     

2.  The applicant states, in effect, that he obtained the rank of E-4 and was awarded the Purple Heart in Vietnam; however, these items are not shown on his DD Form 214 for the period ending 9 May 1969.  He indicates that ever since he was wounded in Vietnam his records have not been accurate (lost records, no record of promotions, pay problems).  He would like his discharge upgraded for Department of Veterans Affairs (DVA) benefits.

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 enlisted in the Regular Army (RA) on 8 February 1966 for a period of 3 years.  He arrived in Vietnam on 22 September 1966.  He served as a light weapons infantryman assigned to Companies C and D, 2nd Battalion,
7th Cavalry, 1st Cavalry Division in Vietnam from 1 October 1966 through 
18 November 1966.  He was assigned to the Security Guard Company in Vietnam from 19 November 1966 through 30 January 1967 when he departed Vietnam for Okinawa.  On 4 June 1967, he was honorably discharged for immediate reenlistment.  The applicant subsequently reenlisted on 5 June 1967 for a period of 3 years.

3.  The applicant's DD Form 214 for the period ending 4 June 1967 shows the National Defense Service Medal, the Vietnam Service Medal, and the Combat Infantryman Badge as authorized awards.

4.  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 the 2nd Battalion, 7th Cavalry was awarded the Presidential Unit Citation for actions during the period 25 August 1966 to 4 April 1967 based on Department of the Army General Orders Number 2, dated 1973.

5.  On 21 June 1967, nonjudicial punishment was imposed against the applicant for two specifications of failures to repair.  His punishment consisted of restriction and extra duty. 

6.  On 6 October 1967, the applicant arrived in Vietnam for his second tour of duty.  He served as a light weapons infantryman assigned to Company C,
5th Battalion, 60th Infantry in Vietnam from 9 October 1967 until he was wounded in action on 31 January 1968 and was evacuated to the United States on 16 February 1968 for further medical treatment.      

7.  On 24 June 1968, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended) and a forfeiture of pay.


8.  On 30 August 1968, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 14 July 1968 to 23 July 1968.  He was sentenced to be confined at hard labor for 2 months and to be reduced to private (PV1)/E-1.  On 3 September 1968, the convening authority approved the sentence.

9.  On 18 November 1968, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 26 October 1968 to 
27 October 1968.  His punishment consisted of an oral reprimand, extra duty, and restriction. 

10.  On 9 January 1969, a bar to reenlistment was imposed against the applicant.

11.  On 18 January 1969, contrary to his pleas, the applicant was convicted by a special court-martial of using disrespectful language, being AWOL from
8 January 1969 to 11 January 1969, and violating two lawful general regulations.  He was sentenced to perform extra duty for 2 months and he was placed on restriction for 2 months.  On 20 January 1969, the convening authority approved the sentence.

12.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, orders, dated 29 April 1969, show the applicant was reduced to E-1 effective 28 April 1969 because he was being discharged from the service with an undesirable discharge.  The applicant's DD Form 214 shows that on 9 May 1969 he was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served a total of 3 years, 2 months, and 20 days of creditable active service with 12 days lost due to AWOL.  Item 5a on this DD Form 214 shows the entry "PVT (P) [private, permanent].  Item 5b on this DD Form 214 shows the entry 
"E-1."  This DD Form 214 shows the National Defense Service Medal, Combat Infantryman Badge, and Vietnam Service Medal as authorized awards.  

13.  Item 33 (Appointments and Reductions) on the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was advanced to the permanent rank/grade of private first class (PFC)/E-3 effective 19 May 1967.  This form also shows that he was reduced to E-1 effective 28 April 1969.

14.  There is no evidence of record which shows the applicant was advanced to E-4 prior to his discharge on 9 May 1969.  

15.  There are no orders for the Purple Heart in the available records.  However, the Vietnam Casualty Roster lists the applicant's name with a casualty code of 23 and a date of casualty of 31 January 1968.  Casualty code 23 refers to Soldiers "hostile wounded in action – not serious – hospitalized."

16.  Records show that during the applicant's assignments in Vietnam he participated in the Vietnam Counteroffensive, Phase II (1 July 1966 – 31 May 1967); Vietnam Counteroffensive, Phase III (1 June 1967 – 29 January 1968); and Tet Counteroffensive (30 January 1968 – 1 April 1968) campaigns.

17.  Department of the Army Pamphlet 672-3 shows the 5th Battalion, 60th Infantry was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during a period of time the applicant was assigned to the unit based on Department of the Army General Orders Number 43, dated 1970.  

18.  Department of the Army Pamphlet 672-3 also shows the 5th Battalion, 60th Infantry was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during a period of time the applicant was assigned to the unit based on Department of the Army General Orders Number 59, dated 1969.

19.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 

20.  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.  

21.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Campaign Medal correctly known as the Republic of Vietnam Campaign Medal with Device (1960).  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.  



22.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

23.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

24.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  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.

25.  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.  Although the applicant contends that he attained the rank of E-4, evidence of record shows the highest rank he attained was E-3.  However, orders show he was reduced to E-1 effective 28 April 1969 which is properly shown in items 5a and 5b on his DD Form 214 for the period ending 9 May 1969.  Therefore, there is no basis for granting his request to show his rank as E-4 on his DD Form 214 for the period ending 9 May 1969.   

2.  The entry on the Vietnam Casualty Roster which shows the applicant was wounded in action on 31 January 1968 is accepted as sufficient evidence on which to accept the fact that he was awarded the Purple Heart as he contends.  Therefore, his DD Form 214 should be corrected to show this award.

3.  Based on the applicant's service in Vietnam, he is eligible for award of the Republic of Vietnam Campaign Medal with Device (1960).

4.  The applicant participated in three campaigns during his assignments in Vietnam which entitles him to three bronze service stars for wear on is already-awarded Vietnam Service Medal.

5.  The applicant’s unit (2nd Battalion, 7th Cavalry) was cited for award of the Presidential Unit Citation while he was assigned to it.  Therefore, his DD Form 214 for the period ending 9 May 1969 should be corrected to show this unit award.

6.  The applicant’s unit (5th Battalion, 60th Infantry) was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was assigned to it.  Therefore, his DD Form 214 for the period ending 9 May 1969 should be corrected to show these unit awards.

7.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request for a discharge upgrade.

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.  deleting from item 24 of the applicant's DD Form 214 for the period ending 9 May 1969 the Vietnam Service Medal; and
   b.  adding to item 24 of the applicant's DD Form 214 for the period ending
9 May 1969 the Purple Heart, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Presidential Unit Citation, 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 amending items 5a and 5b on his DD Form 214 for the period ending 9 May 1969 or upgrading his undesirable discharge.



      __________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)                                         AR20090004302



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ABCMR Record of Proceedings (cont)                                         AR20090004302



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