IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090004924 


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 that his 1971 Bad Conduct Discharge be upgraded and, in effect, that awards associated with his service in Vietnam be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he is sorry for the bad choices he made during his military service.  He states it was his intention to serve to the best of his abilities but he was young and foolish and he made mistakes.  He indicates he would like his discharge upgraded so he can receive benefits.

3.  The applicant provides a copy of his 1971 DD Form 214.

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.  A review of files available to the Board indicates the Board previously considered and denied a petition from the applicant to upgrade his discharge on 11 March 1998 (ABCMR Docket Number AC97-10498).  As such, that portion of his current request pertaining to an upgrade of his 1971 discharge has been accepted as a request for reconsideration.

3.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  

4.  In view of the fact the applicant’s request for reconsideration was not received within one year of the ABCMR’s original decision, his request does not meet the criteria outlined above and will not be discussed further in these proceedings.

5.  The applicant’s request for decorations associated with his Vietnam service is considered a new issue and warrants consideration by the Board.

6.  Records available to the Board indicate the applicant was initially inducted into the Army of the United States, on 15 June 1967, and he was discharged 
5 days later for the purpose of enlisting in the Regular Army.  On 20 June 1967, he enlisted in the Regular Army.

7.  In December 1967, following completion of training, the applicant was assigned to the 630th Ordnance Company in Vietnam.  By April 1968 he had been promoted to pay grade E-4.

8.  In October 1968 the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for operating a forklift in a reckless and dangerous manner and for failing to obey an order to stop operating the forklift.  His punishment included reduction to pay grade E-3. 

9.  The applicant departed Vietnam in December 1968.  In spite of his UCMJ action, his conduct and efficiency ratings in item 38 (record of assignments) on his DA Form 20 (Enlisted Qualification Record) were recorded as “excellent.”

10.  Following the applicant’s departure from Vietnam he was punished multiple times under Article 15 of the UCMJ for a variety of infractions including for being absent without leave (AWOL) and disobeying orders.  He was also convicted by a special and summary court-martial for periods of AWOL.  Ultimately the applicant was convicted by a general court-martial which resulted in him being issued a bad conduct discharge, on 22 October 1971.

11.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on his 1971 DD Form 214 reflects “NA” [not applicable)].

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

13.  Appendix B of Army Regulation 600-8-22 shows the campaigns for Vietnam.  During the applicant’s tours in Vietnam he would have participated in the five designated campaign periods (Vietnamese Counteroffensive Phases III, IV, V, and VI, and TET Counteroffensive).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign or a single silver service star in lieu of five individual bronze service stars.  

14.  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.

15.  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 unit to which the applicant was assigned was awarded two Meritorious Unit Commendations, one for the period 1 May 1967 to 30 April 1968 by Department of the Army General Order 31, dated 1969 and one for the period 1 May 1968 to 30 April 1969 by Department of the Army General Order Number 39, dated 1970.

16.  Department of the Army Pamphlet 672-3 also shows the applicant is eligible to wear the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974.
17.  Army Regulation 600-8-22 precludes award of personal decorations to any individual whose entire service subsequent to the time of the distinguished act, achievement, or service has not been honorable.  However, service medals and service ribbons denote honorable performance of military duty within specified limited dates in specified geographical areas.

18.  Army Regulation 600-8-22 (Military Awards) as amended provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995 and 11 September 2001 to a date to be determined.  This regulation also provides that the second and subsequent awards of the National Defense Service Medal are denoted by a bronze service star affixed to the National Defense Service Medal.

DISCUSSION AND CONCLUSIONS:

1.  While Army Regulation 600-8-22 precludes award of personal decorations to individuals whose service subsequent to the award was not honorable the regulation permits award of service medals and service ribbons to individuals who served honorably during a specified period in a specified location.

2.  Evidence available to the Board indicates that in spite of being punished under Article 15 of the UCMJ while in Vietnam the applicant’s overall conduct and efficiency rating during his tour of duty in Vietnam between December 1967 and December 1968 was characterized as honorable.  The fact that his service subsequent to his tour of duty in Vietnam was less than honorable should not preclude the applicant from receiving the service medals associated with his service in Vietnam.

3.  The evidence confirms the applicant served honorably in Vietnam between December 1967 and December 1968 and as such is entitled to the Vietnam Service Medal with one silver service star denoting participation in five designated campaign periods, the Republic of Vietnam Campaign Medal with Device (1960), two Meritorious Unit Commendations, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  His records should be corrected accordingly.

4.  The applicant also served on active duty during a period for which he is entitled to the National Defense Service Medal.




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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his 1971 DD Form 214 to add the Vietnam Service Medal with one silver service star, the Republic of Vietnam Campaign Medal with Device (1960), two Meritorious Unit Commendations, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the National Defense Service Medal.




      _______ _   _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)                                         AR20090004924



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ABCMR Record of Proceedings (cont)                                         AR20090004924



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