IN THE CASE OF:	

		BOARD DATE:	 10 December 2009 

		DOCKET NUMBER:  AR20090010177 


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, upgrade of his undesirable discharge (UD) to an honorable discharge (HD).  

2.  The applicant states, in effect, that he was not absent without leave (AWOL) from Letterman Hospital and that the Army knew of his whereabouts at all times.

3.  The applicant provides the following documents in support of his application: Department of Veterans Affairs (VA), Oakland, CA Regional Office, Sacramento, CA, Transcript of Hearing, dated 9 September 2008; Combat Infantryman Badge (CIB) Certificate, dated 3 October 1967; Standard Form (SF) 88 (Report of Medical Examination), dated 2 May 1973; and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 that he enlisted in the Regular Army (RA) on
27 May 1966.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The DA Form 20 (Enlisted Qualification Record) on file is a temporary record that appears to have been prepared during the applicant's discharge processing. There are entries only in the following items:  item 1 (Name and Service Number), item 6 (Date of Birth), item 7 (Race), item 9 (Religion), item 11 (Enlisted, Inducted, Reenlisted, Extended, and/or OAD), item 16 (Service Dates), item 38 (Record of Assignments) and item 41 (Time Lost).

4.  Item 31 (Foreign Service) of the applicant's DA Form 20 is blank and does not document the dates of his Republic of Vietnam (RVN) service.  Item 38 contains only a dropped from the rolls (DFR) entry for 27 August 1968; a Duty Soldier entry at the Personnel Control Facility, Fort Ord, CA, for 20 April 1973; and an UD entry for 6 June 1973.  Item 44 contains three entries indicating a period of the applicant being AWOL from 29 July 1968 through 26 August 1968; being DFR from 27 August 1968 through 19 April 1973; and being in confinement from 4 through 8 May 1973.

5.  The applicant's Official Military Personnel File (OMPF) contains orders assigning him to the Overseas Replacement Station, Oakland, for further assignment to the RVN, dated 5 May 1967, which established his reporting date to Oakland as 27 June 1967.  It also contains an orders extract issued by Headquarters, U.S. Army Vietnam (USARV) Transient Detachment, dated 2 July 1967, which assigned the applicant to the 101st Airborne Division, with a reporting date of 9 July 1967.

6.  The applicant's OMPF also contains Headquarters, 1st Brigade, 101st Airborne Division, APO San Francisco 96347, Special Orders (SO) 276, dated
3 October 1967, which awarded him the CIB and shows he was assigned to and serving in Company B, 2nd Battalion, 502nd Infantry Regiment.  In addition, it contains Headquarters, 1st Brigade, 101st Airborne Division SO Number 32, dated 1 February 1968, which promoted the applicant to specialist four (SP4)/E-4 and also show he was serving with Company B, 2nd Battalion, 502nd Infantry Regiment.

7.  The applicant's record contains a DA Form 1 (Morning Report) for the Medical Holding Company (MHC), Letterman General Hospital, for the period ending 
2400 hours, 29 July 1968, which contains an entry that shows the applicant departed AWOL and that his duty status changed from hospital to AWOL on 27 July 1968.  The applicant is listed as a sergeant (SGT) on this morning report.  

8.  An OSA Form 172 (Army Discharge Review Board (ADRB) Case Report and Directive) on file that documents a review of the applicant's case completed by the ADRB on 28 February 1980 confirms, based on information received from the Casualty Branch, that the applicant was awarded two PHs while serving in the RVN.

9.  The applicant's record contains an SF 88, dated 2 May 1973, which documents the applicant's separation physical examination.  It shows the applicant was in good health and that he suffered from no disqualifying mental or physical conditions at the time of his discharge processing.  It finally shows the applicant was medically cleared for separation/retention by the examining physician.

10.  A DD Form 458 (Charge Sheet), prepared on 4 May 1973, shows a court-martial charge was preferred against the applicant based on his violation of Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 29 July 1968 through on or about 20 April 1973.

11.  On 7 May 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial under circumstances that could lead to a bad conduct or dishonorable discharge and of his associated rights.  Subsequent to receiving this legal counsel, the applicant voluntarily requested to be discharged for the good of the service in lieu of court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

12.  In his request for discharge, the applicant confirmed he had not been subjected to coercion with respect to his request for discharge and that he understood that if his request for discharge were approved, he would normally be discharged under other than honorable conditions and furnished an UD.  He also confirmed that he had been advised as to the possible effect of an UD, which would result in his being deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life by reason of an UD.  He also elected to submit a statement in his own behalf.  

13.  The statement the applicant submitted with his discharge request confirmed that he was pending charges for 1 AWOL offense of 53 months from Letterman General Hospital.  He also stated that he hated the Army and that he would keep going AWOL if he had to go back to duty.  He further indicated that he understood what an UD was and that he was willing to accept one to get out of the Army.

14.  On 31 May 1973, the separation authority approved the applicant's request for discharge and directed he be separated for the good of the service under the provisions of chapter 10, Army Regulation 635-200, and that he be issued an UD.  On 6 June 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued upon his discharge shows he completed a total of 2 years, 
2 months, and 20 days of creditable active military service and that he accrued a total of 2,456 days of time lost due to AWOL and confinement.  It documents no overseas service in item 22c (Foreign and/or Sea Service) and shows only that he earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar in item 24 (Decorations, Medals, Badges, Commendation, Citations and Campaign Ribbons Awarded or Authorized).

15.  In the VA hearing transcript the applicant provided, he testified that he was wounded with just 11 days left on his RVN tour and he was medically evacuated to Letterman Hospital, which is where his problems began.  He stated that he did not even have the chance to clear the RVN and when he arrived at Letterman, he only had 10 months left to his expiration of term of service (ETS).  He claimed he was at Letterman for two or three months under the care of a doctor and he was eventually put in the overflow barracks waiting for further orders, which never came.

16.  The applicant also testified to the VA that he was lost to the system and he continued to be told to just come back.  Finally, in 1973 he was put on a bus and told to go to Fort Ord where they had no information or records on him and after being confined for three months, he was told the only way out was to accept an UD.  He stated that he does not feel like he did anything to deserve the discharge, he had a good record, he had no prior disciplinary problems, and he was a fire team leader in the RVN.  He stated that he did not deserve an UD based on his overall record of service to his country.  He further indicated that his wounds were giving him problems for a long time and he still has issues based on his RVN service and he was going to counseling for these problems.

17.  On 28 February 1980, the ADRB, after carefully evaluating the applicant's military record and the issues he presented, determined the applicant's discharge was proper and equitable, and it voted to deny the applicant's request for an 
upgrade of his discharge.  The ADRB did confirm the applicant had served in the RVN, attained the rank of SGT, and he had been wounded in action twice and awarded two PHs, which was verified by the DA Casualty Branch.

18.  A review of the Vietnam Casualty Roster revealed an entry pertaining to the applicant that confirms he was wounded in action in the RVN on 28 October 1967.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

20.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

21.  Paragraph 3-7b provides that a general, under honorable conditions discharge (GD) 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.

22.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  It states that for item 22c (Statement of Service - Foreign and/or Sea Service), enter the total active duty outside the continental limits of the United 
States for the period covered by the DD Form 214 and the last overseas theater in which service was performed, e.g., "Foreign and/or Sea Service (USAREUR)."
23.  Army Regulation 635-5 also stated that item 30 (Remarks) will be used to complete entries too long for their respective items.  It further state, indicate Indochina and Korea service on or after 5 August 1964, enter the inclusive dates of service for Vietnam and indicating "yes" or "no" for service in Indochina and Korea.  There the record reflects assignment to an organization in Burma, Laos, Thailand, Cambodia, or Vietnam show "yes" for Indochina.  For example:  to show service in Vietnam only, enter "Vietnam – 25 Apr 70 through 28 May 71, Indochina – yes, Korea – no."

24.  On 16 September 1974, President Ford issued Presidential Proclamation (PP) 4313, which affected three groups of individuals.  These groups were 
(1) fugitives from justice who were draft evaders; (2) members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or UD for violation of Articles 85, 86, or 87 of the UCMJ.  On 19 January 1977, President Ford issued a memorandum, often referred to as PP 4313 Extension, which mandated, in pertinent part, that a GD be issued to individuals who had been wounded in action or decorated for valor.

25.  On 4 April 1977, the Secretary of Defense implemented the DOD Special Discharge Review Program (SDRP), often referred to as the “Carter” program, in which the Military Services were directed to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program required, absent compelling reasons to the contrary, that a discharge be upgraded to either an HD or GD 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.

26.  The SDRP guidance also allowed for the consideration of other factors, including 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.  Public Law later required this Board to affirm any upgrade actions taken by Discharge Review Boards under this program.

27.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH and states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by medical personnel, and a record of 
this medical treatment must have been made a matter of official record.  This regulation also states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

28.  Paragraph 2-13 provides guidance on the Vietnam Service Medal (VSM) and states that it is authorized for service in the RVN between 3 July 1965 and
28 march 1973.  It further states that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving 
in the RVN.  Table B-1 provides a list of RVN campaigns and shows that during the period the applicant served in the RVN, participation credit was granted for the Vietnam Counteroffensive, Phase III (1 June 1967-29 January 1968); TET Counteroffensive (30 January-1 April 1968); and the Vietnam Counteroffensive Phase IV (2 April-30 June 1968).

29.  Paragraph 9-13 of the awards regulation provides guidance on the RVN Campaign Medal and states, in pertinent part, that it is authorized for 6 months of service in the RVN completed between 1 March 1961 and 28 March 1973, inclusive.  It also indicates that a Device (1960) is authorized for wear with this award.

30.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and 
personnel officers in determining or establishing the eligibility of Soldiers for 
campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It shows that during the applicant's tenure of assignment, his unit (2nd Battalion, 502nd Infantry Regiment) was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders (DAGO) Number 48, dated 1971.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because he was not AWOL was carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record confirms the applicant's discharge processing was accomplished in accordance with the applicable regulation.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with defense counsel, the applicant voluntarily 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.

2.  However, there are equity considerations that should be considered in this case.  The evidence of record confirms the applicant served in the RVN from approximately 2 July 1967, as corroborated by USARV further assignment orders on file, through on or about 20 June 1968, which would be 11 days prior to his scheduled RVN departure date, which is corroborated by his testimony to the VA. As a result, it would be appropriate to document this RVN service in his record and on his DD Form 214.

3.  Further, the record shows the applicant was wounded in action in the RVN twice and awarded two PHs, as evidenced by the DA Casualty Branch verification referred to in the ADRB OSA Form 172 on file in his record.  As a result, it would be appropriate to award him the PH for being wounded in action in the RVN on 28 October 1967, as corroborated by the Vietnam Casualty Roster; and the PH 1st Oak Leaf Cluster (2nd Award) for being wounded in action in the RVN on or about 20 June 1968, as evidenced by his medical evacuation from the RVN and subsequent hospitalization at Letterman Medical Center.  In addition, these awards should be added to his record and DD Form 214.

4.  Based on his RVN service and campaign participation, the applicant is also eligible for the VSM with 3 bronze service stars, RVN Campaign Medal with Device (1960), RVN Gallantry Cross with Palm Unit Citation, and the RVN Civil Actions Honor Medal First Class Unit Citation.  Further, his record contains orders confirming he was awarded the CIB.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214 at this time.

5.  The applicant was not eligible for review under the SDRP because his discharge was outside of the eligibility period, and his case was reviewed and relief was denied by the ADRB using uniform discharge review standards
in 1980.

6.  However, in view of the applicant's record of more than 2 years of excellent service, which included his combat service during which he was twice wounded in action, prior to going AWOL, it would be appropriate to provide relief in the spirit of clemency put forth in PP 4313 and the SDRP by upgrading his discharge to a GD in the interest of equity.  Nevertheless, even in applying these clemency standards, absent any evidence of error or injustice related to his discharge processing, his extensive AWOL related misconduct clearly diminished the overall quality of his service below that meriting a fully 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.  showing he received a general, under honorable conditions discharge in conjunction with his 6 June 1973 discharge instead of the Undesirable Discharge of the same date he now holds;

	b.  awarding him the Purple Heart (1st Oak Leaf Cluster) for being wounded in action in the RVN on 28 October 1967 and on or about 20 June 1968;

	c.  adding to item 22c of his DD Form 214 the entry "USARV" and "0  11  19". This would indicate that the applicant's overseas theater in which he served with the "U.S. Army Vietnam" and that he served in the overseas area for 11 months and 19 days.

   d.  adding to item 24 of his DD Form 214 the Purple Heart (1st Oak Leaf Cluster), Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Combat Infantryman Badge; 

	e.  adding to item 30 (Remarks) of his DD Form 214 by adding the entry "Vietnam – 2 Jul 67 through 20 Jun 68, Indochina – yes, Korea - no"; and

	f.  issuing him a new DD Form 214 that includes these changes.



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 upgrading his discharge to fully honorable.



      _________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)                                         AR20090010177



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ABCMR Record of Proceedings (cont)                                         AR20090010177



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