IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090018900 


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 his undesirable discharge (UD) be upgraded to an honorable discharge (HD). 

2.  The applicant states he received his UD in the last two months of his enlistment.  He further indicates it happened after his return from the Republic of Vietnam (RVN) and he was supposed to get an administrative discharge.  He claims he began drinking after his return from the RVN based on his experiences there.  He further states although he tried to get help, no one assisted him with this problem.  He claims he served his country honorably and received two Bronze Star Medals (BSMs) and the Combat Infantryman Badge (CIB) based on his service and performance in the RVN.  He believes he deserves an HD based on his overall record of service and admits his drinking problem upon his return from the RVN impacted his behavior. 

3.  The applicant provides the following documents in support of his application:

* DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* DA Form 20 (Enlisted Qualification Record)
* BSM Orders and Citations
* DD Forms 214 (Armed Forces of the United States Reports of Transfer or Discharge)
* Third-Party Statements of Support.


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 he enlisted in the Regular Army and entered active duty on 9 August 1965.  He was trained in and awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).

3.  The applicant was honorably discharged for the purpose of immediate reenlistment on 28 August 1966 and reenlisted for 4 years on 29 August 1966.  He was again honorably discharged for the purpose of immediate reenlistment on 28 May 1970 and reenlisted for 3 years on 29 May 1970.  He also was discharged for the purpose of immediate reenlistment on 10 August 1970 and reenlisted for 6 years on 11 August 1970.  His record contains three DD Forms 214 issued for each of these separate periods of service.  All indicate he was honorably discharged and confirm he completed a total of 4 years, 11 months, and 14 days of honorable active duty service prior to beginning his last enlistment on 11 August 1970.

4.  The applicant's record shows that he was promoted to the rank of staff sergeant/E-6 (SSG/E-6) on 10 March 1969, and this is the highest rank he attained while serving on active duty.  It also shows he served in the RVN from 25 July 1968 through 11 July 1969, and was assigned to Company C, 1st Battalion, 61st Infantry during this tour.

5.  The applicant's record also shows he earned:

* National Defense Service Medal
* Vietnam Service Medal
* CIB
* BSM 1st Oak Leaf Cluster (2nd Award) with "V" (Valor) Device
* RVN Campaign Medal with 60 Device
* two overseas service bars
6.  The applicant's record contains Headquarters, XXIV Corps, RVN, General Orders Number 190, dated 20 November 1968, which awarded the applicant the BSM with "V" Device for exceptionally valorous actions in connection with military operations against a hostile force in the RVN on 9 September 1968.  The orders indicate in part that the applicant with complete disregard for his own safety left his position and moved to the location of a wounded officer.  He carried the wounded officer to an aid station, and due to the number of wounded and lack of medical personnel, the applicant administered first aid to the officer and after completing this, administered first aid to other wounded personnel.  As a result of his actions, a key individual of the unit was kept from further serious injury and possibly death.  His personal bravery and devotion to duty were in keeping with the highest traditions of military service.

7.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 February 1970; and his accrual of 97 days of time lost during three separate periods of being absent without leave (AWOL) between 17 August 1971 and 2 February 1972.

8.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does contain a properly-constituted DD Form 214 issued on 2 March 1972, which identifies the authority and reason for his separation.  The DD Form 214 confirms he was discharged on 2 March 1972, in the rank of private/E-1, after completing 6 years and 3 months of creditable active service and accruing 97 days of time lost due to AWOL.  It also shows he received a UD and was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service-in lieu of trial by court-martial.

9.  The applicant provides letters of support addressed to Members of Congress from his mother-in-law attesting to his good post-service conduct and requesting assistance to upgrade his discharge based on his RVN service and post-service conduct.  His DA Form 20 shows he received "excellent" conduct and efficiency ratings through November 1971.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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.  A UD was normally furnished to members separated for this reason.  The separation authority could issue a general, under honorable conditions discharge (GD) or HD if warranted by the overall record of service.

12.  The same regulation stipulates 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A GD is authorized to be issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an HD.  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.  The applicant’s contention that his discharge should be upgraded based on his RVN service because the misconduct he subsequently committed was the result of his RVN experiences and the lack of assistance he received for his alcohol problem at the time has been carefully considered and found to have merit.

2.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, the record includes a properly-constituted DD Form 214 that identifies the authority and reason for his discharge.  Absent any independent evidence of error or injustice related to his discharge processing, this document carries with it a presumption of regularity in the discharge process.  As a result, it is presumed his discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

3.  The evidence of record confirms all the applicant's misconduct occurred subsequent to his return from the RVN.  While this misconduct leading to his discharge cannot be condoned, prior to committing this misconduct, his overall record of service was stellar.  His conduct and efficiency ratings were "excellent" and his performance of combat service in the RVN was commendable.

4.  The applicant served honorably and faithfully for over six years.  Further, his valorous service in the RVN was recognized by award of two BSMs, one of which was for valor, and receipt of the CIB for his sustained infantry combat duty.

5.  Based on the applicant's overall long record of distinguished service prior to committing the misconduct that resulted in his discharge, it would be appropriate and serve the interest of justice and equity to upgrade his discharge to fully honorable.  This would accurately reflect the nature of the vast majority of military service he performed.

BOARD VOTE:

___X____  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant was given an honorable discharge from the Army on 2 March 1972 in lieu of the UD and by issuing him a new DD Form 214 reflecting this change. 



      _____________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)                                         AR20090018900



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ABCMR Record of Proceedings (cont)                                         AR20090018900



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