IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090018725 


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:

   a.  an upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge; and

	b.  correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show awards of the Purple Heart, the Combat Infantryman Badge, and the Air Medal.

2.  The applicant states that upon his return from the Republic of Vietnam, he had numerous run-ins with the law.  He had emotional and depression problems as well as a failed relationship and personal problems that led to his discharge from the Army.  He was recently diagnosed with post-traumatic stress disorder (PTSD) from his Vietnam service and has lung cancer from exposure to Agent Orange, as well as throat cancer.

3.  The applicant provides copies of his DD Forms 214, dated 17 February 1971 and 29 August 1973, and copies of various medical documents and/or statements in support of his request.

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 enlisted in the Regular Army (RA) for a period of 3 years on 15 May 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewmember).  He was honorably discharged on 17 February 1971 for the purpose of immediate reenlistment.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, dated 17 February 1971, shows he was awarded the National Defense Service Medal and the Vietnam Service Medal.  Item 24 does not show award of the Purple Heart, the Combat Infantryman Badge, or the Air Medal.

4.  The applicant's records show he served in the Republic of Vietnam from on or about 17 October 1970 to on or about 20 October 1971.  He was assigned to Company B, 2nd Battalion, 501st Infantry, 101st Airborne Division.  His records also show that while serving in Vietnam, he executed a reenlistment in the RA on 18 February 1971.

5.  The facts and circumstances concerning the applicant's separation process are not available for review with this case.  However, his records contain a properly-constituted DD Form 214 that shows he was discharged on 29 August 1973 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of trial by court-martial with a character of service as under other than honorable conditions.  This form further shows he completed 1 year, 9 months, and 20 days of creditable active service during this period and had 9 months and 3 days of prior active service.  Additionally, this form shows the following entries:

	a.  item 24 does not list any awards;

	b.  item 26a (Non-Pay Periods Time Lost) shows the periods of lost time as 14 October 1971 to 19 October 1971, 5 January 1972, 12 January 1972, and 31 May 1972 to 5 February 1973; and

	c.  item 30 (Remarks) shows the applicant had 265 days of lost time under section 972 of Title 10, U.S. Code.

6.  The applicant's DA Form 20 (Enlisted Qualification Record), which would have shown combat wounds in item 40 (Wounds), is not available for review with this case.

7.  The applicant's name is not shown on the Vietnam casualty roster.

8.  The applicant's records do not contain official orders showing awards of the Purple Heart, the Combat Infantryman Badge, or the Air Medal.

9.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart, Combat Infantryman Badge, or Air Medal orders on file for the applicant.

10.  The applicant's official military medical records are not available for review with this case.

11.  The applicant's flight records, if any, are not available for review with this case.

12.  There is no indication in the applicant's records that show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

13.  The applicant submitted several medical documents as follows:

	a.  a medical statement, dated 28 September 2009, in which the applicant appears to be have been diagnosed with PTSD.  Additionally, a handwritten entry shows he was treated at the Veterans Affairs Medical Center once and that he was told he could not continue treatment due to the type of discharge;

	b.  a doctor's order, dated 28 September 2008, in which the applicant was prescribed medications;

	c.  a doctor's statement, dated 12 October 2009, in which a medical doctor states that the applicant was first seen at the Head and Neck Clinic at the Brown Cancer Center in March 2008 for cancer and continues to be under a doctor's care; and

	d.  a doctor's statement, dated 13 October 2009, in which an oncologist states that the applicant had been a patient of his at the Brown Cancer Center since March 2008.

14.  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, the 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.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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.

17.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for the following awards:

	a.  The Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

	b.  The Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry 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 U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) 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.

	c.  The Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

18.  U.S. Army Vietnam Regulation 672-1 provided, in pertinent part, guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded and that his DD Form 214 should be corrected to show the Purple Heart, the Combat Infantryman Badge, and the Air Medal.

2.  With respect to the applicant's discharge, the applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 29 August 1973 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
The applicant has provided no information that would indicate the contrary.  Further, given his extensive period of lost time, the applicant's discharge appears to accurately reflect his overall record of service.

3.  The applicant's current medical condition is noted.  Additionally, his contention that he was exposed to Agent Orange in Vietnam was carefully considered.  However, there is insufficient evidence to support this claim or to show a correlation between his discharge in lieu of trial by court-martial and his medical condition.

4.  With respect to the Purple Heart, the applicant's name is not shown on the Vietnam casualty roster, his record is void of any orders that show he was awarded the Purple Heart, and his medical records are not available for review or as an indication that he was wounded and/or injured as a result of hostile action. 
Therefore, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

5.  With respect to the Combat Infantryman Badge, the applicant's service in the Republic of Vietnam, infantry MOS, and assignment to an infantry unit are not in question.  However, there is no evidence in the available records and the applicant did not submit substantiating evidence that shows he was personally present and under hostile fire while serving in his assigned infantry duty, in an infantry unit that was actively engaged in ground combat with the enemy.  Therefore, there is insufficient evidence upon which to base award of the Combat Infantryman Badge in this case

6.  With respect to award of the Air Medal, there are no general orders that show the applicant was awarded the Air Medal and his flight record is not available for review.  In the absence of records or other independent evidence that would confirm he completed the number of missions necessary to be awarded the Air Medal, there is insufficient evidence upon which to base award of the Air Medal in this case.  

7.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the character of his discharge was in error or unjust.  The applicant did not submit evidence that would satisfy these requirements.  Therefore, the applicant is not entitled to relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _____________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)                                         AR20090018725



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018725



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1