BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090021730


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 discharge upgrade to honorable

* addition of Purple Heart(s) to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

* addition of the Air Medal and foreign unit citations to his DD Form 214

2.  The applicant states his discharge was improper and inequitable based on "new evidence."  He states:

* the Department of Veterans Affairs (VA) has found he suffers from PTSD (post-traumatic stress disorder) which accounts for his change of character and sudden misconduct at the end of his career

* he received three nonjudicial punishments (NJPs) under Article 15, Uniform Code of Military Justice (UCMJ), for minor military offenses

* he was convicted by two summary courts-martial for failing to go at the time prescribed to his place of duty and for 59 days of being absent without leave (AWOL)

* a 22 September 1970 mental health evaluation showed PTSD symptoms and the narrative mentions drug abuse; however, he was never charged with any drug crimes

3.  The applicant believes:

* he never should have been discharged because he had an unfitting medical condition - PTSD

* he was not properly counseled nor was he administratively reassigned for rehabilitative purposes

* his separation under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) mandates an under honorable conditions discharge

4.  The applicant provides:

* a 5-page self-authored statement

* a list of attachments

* a 26 October 2009 letter from a clinical psychologist

* excerpts from his DA Form 201 (Military Personnel Records Jacket) including:

* General Orders Number 3971, Headquarters, 101st Airborne Division, Vietnam, dated 29 April 1969, awarding him the Purple Heart for wounds received on 20 April 1968

* Special Orders Number 143, Headquarters, 101st Airborne Division, Vietnam, dated 22 May 1968, awarding him the Combat Infantryman Badge

* General Orders Number 6316, Headquarters, 101st Airborne Division, Vietnam, dated 15 September 1968, awarding him the Army Commendation Medal



* General Orders Number 578, Headquarters, 101st Airborne Division, Vietnam, dated 18 January 1969, awarding him the Army Commendation Medal

* General Orders Number 426, Headquarters, 82nd Airborne Division, Fort Bragg, NC, dated 4 June 1970, awarding him the Army Good Conduct Medal for the period 30 November 1966 to 29 November 1969

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 enlisted in the Regular Army for 3 years on 30 November 1966. He was trained in and awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  In December 1967, he was transferred to Vietnam with his unit, Company A, 2nd Battalion, 501st Infantry, 101st Airborne Division.  He served in his MOS as both a gunner and a forward observer until 8 July 1968 when he reenlisted for 3 more years and reassignment to Headquarters and Headquarters Company, 101st Airborne Division for duty as a security guard.  He remained in Vietnam until on or about 6 September 1969, when he returned to the continental United States for an assignment at Fort Bragg, NC.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows:

* in Item 33 (Appointments and Reductions), he was promoted to sergeant (SGT)/E-5 on 29 March 1968 (although it does not show it, by October 1969, he was a staff sergeant (SSG)/E-6)

* in Item 39 (Campaigns), he participated in 7 campaigns

* in Item 40 (Wounds), he received fragmentation wounds to his chest and left thigh on 29 December 1967 and to his right shoulder on 10 April 1968
* in Item 41 (Awards and Decorations), he was awarded the:

* Parachutist Badge
* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal
* Combat Infantryman Badge
* Army Good Conduct Medal
* three Overseas Service Bars
* Expert Marksmanship Qualification Badge with Machinegun (M-60) Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar

4.  His DA Form 20 does not show award of the Purple Heart, nor does it show the Air Medal or any foreign unit awards.

5.  At Fort Bragg, the applicant's record shows he received four records of NJP under Article 15, UCMJ, for purely military offenses, including:

	a.  twice failing to go at the time prescribed to his appointed place of duty on 12 November 1969, for which he received a forfeiture of $83.00 pay per month for 1 month;

	b.  failing to go at the time prescribed to his appointed place of duty on
2 December 1969 and 15 December 1969, for which he received a reduction to SGT/E-5 (suspended for 6 months);

	c.  failing to go at the time prescribed to his appointed place of duty on 6 July 1970, for which he received a forfeiture of $50.00 pay per month for 1 month; and

	d.  failing to go at the time prescribed to his appointed place of duty on
31 July 1970 and 1 August 1970, for which he was reduced to specialist four (SP4)/E-4 and received a forfeiture of $100 pay per month for 2 months (suspended).

6.  At Fort Bragg, the applicant was also tried and convicted by two courts-martial:

   a.  on 20 August 1970, a summary court-martial convicted him of failing to go at the time prescribed to his appointed place of duty.  The adjudged sentence was comprised of a reduction to private first class (PFC)/E-3 and forfeiture of $100.00 pay per month for 1 month; and
   
   b.  on 6 January 1971, a special court-martial convicted him of being AWOL from on or about 21 September 1970 to on or about 19 November 1970.  The adjudged sentence was comprised of a reduction to private (PV1)/E-1 and confinement at hard labor for 3 months.

7.  The applicant was examined by a psychiatrist on 20 August 1970.  The psychiatrist stated the applicant had been in service for 3 years and he was due to ETS (expiration term of service) on 7 July 1971.  He stated the applicant admitted to a serious drug abuse problem with marijuana, amphetamines, and LSD (hallucinogenic), that he valued his drug use and he did not want to quit.  As a result his work and marriage status declined.  The applicant was described as "sullen, recalcitrant, and bitter" with an "immature personality and little impulse control or frustration tolerance."  The psychiatrist recommended the applicant's separation under the provisions of Army Regulation 635-212 for unsuitability.  On 5 January 1971, a medical doctor not trained in psychiatry attached the previous psychiatric evaluation and recommended the applicant be discharged under Army Regulation 635-212, determining the applicant met psychiatric retention standards and was able to distinguish right from wrong and adhere to the right.  He was found fit to participate in board proceedings.

8.  There is no evidence in the available record to show the applicant was ever referred to a drug abuse treatment program.  There is also no evidence of involvement with drugs other than the psychiatrist's report which attributes drug abuse to a self-admission by the applicant.

9.  Following his special court-martial conviction, the applicant's commander initiated administrative separation action against him under the provisions of Army Regulation 635-212 for unfitness - frequent incidents of a discreditable nature with military authorities.  The commander's request recounted the applicant's four NJPs and two convictions by courts-martial and outlined his service and duty performance as follows:

			DATE									    CONDUCT	   EFFICIENCY

30 November 1966 - 04 December 1966		Excellent			Excellent
05 December 1966 - 17 February 1967		Excellent			Excellent
18 February 1967 - 13 April 1967				Excellent			Excellent
14 April 1967 - 17 May 67						Excellent			Excellent
18 May 1967 - 14 December 1997			Excellent			Excellent
15 December 1967 - 28 March 68				Excellent			Excellent


29 March 1968 - 07 July 1968					Excellent			Excellent
08 July 1968 - 11 July 1968					Excellent			Excellent
12 July 1968 - 25 August 1968				Excellent			Excellent
26 August 1968 - 07 June 1969				Excellent			Excellent
08 June 1969 - 28 October 1969				Excellent			Excellent
29 October 1969 - 11 December 1969		Excellent			Excellent
12 December 1969 - 21 January 1970		Excellent			Excellent
22 January 1970 - 04 March 1970			Excellent			Excellent
05 March 1970 - 07 May 1970					Excellent			Excellent
08 May 1970 - 03 March 1971					Unsatisfactory	Unsatisfactory

10.  The commander's recommendation for administrative discharge for unfitness under the provisions of Army Regulation 635-212 was forwarded through the applicant's chain of command to the approving authority.  The battalion and brigade commanders both recommended approval and issuance of an undesirable discharge (UD).  On 20 February 1971, the 82nd Airborne Division Commander approved the applicant's discharge for unfitness and directed issuance of a UD.

11.  On 3 March 1971, the applicant was discharged with a UD for unfitness under the provisions of Army Regulation 635-212.  His DD Forms 214 show he served 4 years, 1 month, and 4 days of creditable service with 1 year, 8 months, and 27 days served in Vietnam.  He also had 59 days of AWOL time and 30 days of military confinement.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Forms 214 for the period ending 3 March 1971 shows he was awarded the National Defense Service Medal, Parachutist Badge, Vietnam Service Medal, Army Good Conduct Medal, Republic of Vietnam Campaign Medal with Device (1960), Army Commendation Medal, and the Combat Infantryman Badge.

12.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any award of the Air Medal or a second award of the Purple Heart on file for the applicant.

13.  A member for the Board staff also reviewed the Vietnam Casualty List, a compilation of all service men and women killed and or wounded in action during the Vietnam War.  Only the applicant's 10 April 1968 wounding is reflected on this listing.

14.  On 24 March 1974, the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  On 9 July 1974, the ADRB, after considering his case, denied his request.

15.  The applicant provides a VA letter, dated 26 October 2009, which states he has been diagnosed with service-connected PTSD and is rated at 50 percent disabled as a result.  He also provides VA documentation of service-connection for:

* residuals of shell fragment wound right shoulder with retained metallic fragments
* residuals of shell fragment wound right back and left thigh

16.  Army Regulation 600-8-22 (Military Awards) sets forth Department of the Army criteria, policy, and instructions concerning individual military awards, the Army Good Conduct Medal, service medals and service ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments.  It provides:

   a.  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 is required.

	b.  The bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart and the Army Commendation Medal.

	c.  Army Regulation 600-8-22, paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  A silver service star will be worn instead of five bronze service stars.  Appendix B shows that during his service in Vietnam, the applicant participated in the following seven campaigns:

* Vietnamese Counteroffensive Phase III (1 June 1967 - 29 January 
   1968)
* Tet Counteroffensive (30 January - 1 April 1968)


* Vietnamese Counteroffensive Phase IV (2 April - 30 June 1968)
* Vietnamese Counteroffensive Phase V (1 July - 1 November 1968)
* Vietnamese Counteroffensive Phase VI (2 November 1968 - 
   22 February 1969)
* Tet 69 Counteroffensive, 1969 (23 February - 8 June 1969)
* Vietnam Summer - Fall 1969 (9 June - 31 October 1969)

17.  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 units to which the applicant was assigned were cited for award of the:

* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 8 February 1962 to 28 March 1973 by Department of the Army General Order (DAGO) 8, dated 1974
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 18 March 1968 to 2 May 1970 by DAGO 59, dated 1969

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  The regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

19.  Army Regulation 635-212 provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides guidance on characterization of service:

	a.  Paragraph 3-7a states that an Honorable Discharge (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.


	b.  Paragraph 3-7b states that a General 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

21.  Army Regulation 600-200 (Enlisted Personnel Management), chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart is supported by the evidence.  His DA Form 20 shows two woundings - chest and left thigh on 29 December 1967, and right shoulder on 10 April 1968.  The VA has documented two woundings - right back and left thigh, and right shoulder.  The Vietnam Casualty List shows only one wounding on 10 April 1968, and the applicant's records contain orders for the Purple Heart for wounds received on
10 April 1968.  The applicant is entitled to one Purple Heart based on the existence of orders for the 10 April 1968 wounding; however, the evidence strongly suggests another wounding on 29 December 1967 even though no orders could be found.  Therefore, the applicant's records should reflect award of the Purple Heart with 1st oak leaf cluster.

2.  The applicant's DD Form 214 shows award of the Army Commendation Medal; however, his record contains two official orders awarding him the Army Commendation Medal on two separate occasions.  Therefore, his DD Form 214 should be corrected to show the Army Commendation Medal with 1st oak leaf cluster.

3.  The applicant was an airborne infantryman assigned to the 101st Airborne Division (Airmobile).  In all probability, he participated in aerial flight during combat assault missions.  However, award of the Air Medal requires orders and there are no orders in the applicant's records or in ADCARS awarding him the Air Medal.  His request to add the Air Medal should be denied.

4.  Evidence of record shows the units to which the applicant was assigned were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the 


Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  
Therefore, these foreign unit awards should be added to his DD Form 214.

5.  The applicant requests upgrade of his discharge to an HD.  The record shows he was given an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness - frequent incidents of a discreditable nature with military 
authorities.  Given the circumstances in this case, the applicant's discharge was inequitable for the following reasons:

* he served 4 years, 1 month, and 4 days of creditable service
* he served in Vietnam for 1 year, 8 months, and 27 days

* he was twice wounded and twice cited for meritorious service

* he was promoted to SSG/E-6 in three short years

* from 30 November 1966 to 7 May 1970 he received 15 "excellent" conduct and efficiency ratings

* he received only one "unsatisfactory" conduct and efficiency rating for his final rating period from 8 May 1970 to 3 March 1971

* he was punished for purely military offenses for failing to go at the time prescribed to his appointed place of duty and for 59 days of AWOL

* in August 1970, a psychiatrist recommended he be discharged for unsuitability under the provisions of Army Regulation 635-212, for which he would have received no worse than a general discharge

6.  The applicant suffers from PTSD which the VA relates to his experiences during the Vietnam War.  The applicant was an excellent Soldier from initial enlistment, through reenlistment, and up until he returned to the continental United States from Vietnam.  He was an SSG in three short years.  Obviously, something was occurring in his life which rendered him unsuitable for further military service and for which he should have been discharged for unsuitability under Army Regulation 635-212.  In the interest of justice and equity, his discharge should be upgraded to a general discharge and his narrative reason changed to unsuitability.



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:

* voiding his DD Form 214 for the period ending 3 March 1971 showing a character of service of under conditions other than honorable with a separation program number (SPN) of 28B (unfitness - frequent involvement in incidents of a discreditable nature with the military or civilian authorities)

* issuing him a new DD Form 214 for the period ending 3 March 1971 showing a character of service of general, under honorable conditions under the provisions of Army Regulation 635-212 by reason of unsuitability with an SPN of 46A (apathy, defective attitudes and inability to expand effort constructively)

* showing his awards as the:

* Purple Heart with 1st oak leaf cluster
* Army Commendation Medal with 1st oak leaf cluster
* Army Good Conduct Medal
* National Defense Service Medal
* Vietnam Service Medal with one silver service star and two bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Parachutist Badge
* Combat Infantryman Badge
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Expert Marksmanship Qualification Badge with Machinegun (M-60) Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar
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 an honorable discharge and adding the Air Medal to his DD Form 214.



      __________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)                                         AR20090021730



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ABCMR Record of Proceedings (cont)                                         AR20090021730



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