IN THE CASE OF:	  

		BOARD DATE:	  28 July 2009

		DOCKET NUMBER:  AR20090004885 


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 an upgrade of his general, under honorable conditions discharge to fully honorable and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Combat Infantryman Badge as well as any other awards to which he is entitled. 

2.  The applicant states that he was separated under temporary records at the Fort Dix, NJ, Personnel Control Facility after being absent without leave (AWOL) from his Fort Hood, TX, unit.  However, while in the Republic of Vietnam, he served as a rifleman with an infantry company and met the criteria for award of the Combat Infantryman Badge.  He adds that he was awarded the Bronze Star Medal for meritorious service while serving in Vietnam and he did not have any adverse action until he returned to the United States.

3.  The applicant provided a copy of DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 28 March 1972, 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 records show he was inducted into the Army of the United States on 28 July 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records further show he served in the Republic of Vietnam from 25 January 1970 to 2 December 1970.  He was assigned to Company B, 1st Battalion, 502nd Infantry, 101st Airborne Division.

4.  On 7 March 1970, while serving in the Republic of Vietnam, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being found sleeping upon his post in an area designated as authorizing entitlement to special pay for duty subject to hostile fire on or about 4 March 1970.  His punishment consisted of a forfeiture of $38.00 pay.

5.  On 5 January 1972, court-martial charges were preferred against the applicant for three specifications of being AWOL during the periods from on or about 1 June 1971 to on or about 29 June 1971, on or about 9 July 1971 to on or about 3 November 1971, and on or about 30 November 1971 to on or about
3 January 1972.  

6.  On 6 January 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he acknowledged he understood that if the discharge 
request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

8.  On 4 February 1972, the applicant’s intermediate commander recommended approval of the applicant’s discharge with a General Discharge Certificate.  

9.  On 16 February 1972, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive a General Discharge Certificate.  On 28 March 1972, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under honorable conditions.  This form further confirms he completed a total of 2 years, 1 month, and 16 days of creditable active military service and had 197 days of lost time due to AWOL.

10.  Item 24 (Decorations, Medal, Badges, Commendations, Citations and Campaign Ribbons Awarded and Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Campaign Medal, Bronze Star Medal, Vietnam Service Medal, one overseas service bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  Item 24 does not show award of the Combat Infantryman Badge.

11.  The applicant’s records do not contain orders that show he was awarded the Combat Infantryman Badge.  Furthermore, item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show he was awarded the Combat Infantryman Badge.  

12.  The applicant was awarded the Bronze Star Medal for service in the Republic of Vietnam from 1 February 1970 to 31 October 1970.  General Orders Number 13392, Headquarters, 101st Airborne Division, dated 7 November 1970, cited the applicant’s meritorious service in connection with ground operations against a hostile force.

13.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 
15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that 
a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty (MOS).  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Additionally, Appendix V of USARV 672-1 provides that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

17.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

18.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that the 1st Battalion, 502nd Infantry was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders 6, dated 1974.

19.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Winter-Spring 1970 (1 November 1969 – 30 April 1970), Sanctuary Counteroffensive (1 May 1970 – 30 June 1970), and Vietnam Counteroffensive Phase VII (1 July 1970 – 30 June 1971) campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to fully honorable and his DD Form 214 should be corrected to show award of the Combat Infantryman Badge.

2.  The evidence of record shows the applicant held an infantry MOS and was assigned to an infantry unit during his service in the Republic of Vietnam.  Additionally, he was awarded the Bronze Star Medal for meritorious service in connection with ground operations against a hostile force while assigned to Company B, 1st Battalion, 502nd Infantry, 101st Airborne Division.  There appears to be sufficient evidence to show he met the criteria for award of the Combat Infantryman Badge.  Therefore, he should be awarded the Combat Infantryman Badge and to have his records corrected to show this award.

3.  General orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his DD Form 214. Therefore, he is entitled to correction of his DD Form 214 to show this unit award.

4.  The evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in three campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of three bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

5.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

6.  Based on his repeated record of indiscipline, to include an Article 15 received in Vietnam, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable discharge.




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 the Vietnam Service Medal;

   b.  awarding the applicant the Combat Infantryman Badge; and

	c.  adding to item 24 of the applicant's DD Form 214 the Combat Infantryman Badge, Vietnam Service Medal with three bronze service stars, and Republic of Vietnam Gallantry Cross with Palm 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 an upgrade of his 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)                                         AR20090004885



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ABCMR Record of Proceedings (cont)                                         AR20090004885



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