IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100011571 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the following:

* An upgrade of his character of service from under honorable conditions to honorable
* Award of the Purple Heart, Air Medal, Army Commendation Medal, and all other awards that he may be entitled due to his Vietnam service

2.  He states, in effect, his 201 file (Military Personnel Records Jacket) should show he received the Army Commendation Medal, Vietnam Service Medal, Air Medal, and a medal for his service in Germany.  He also states he was wounded in Vietnam and there is scrap metal in his throat but he was not awarded the Purple Heart.  In addition, he is requesting that his discharge be upgraded to an honorable discharge.  

3.  He provides copies of the following documents:

* His DD Form 214 
* His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) from the Florida Army National Guard (FLARNG) that show honorable service  
* His 2009 Progress and Radiology Notes


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 military records show he enlisted in the Regular Army (RA) in pay grade E-1 on 14 May 1969 for 2 years.  He completed the training requirements and he was awarded military occupational specialty 55B (Ammunition Storage Specialist).  He was promoted to pay grade E-3 on 5 May 1970.  He was honorably discharged on 7 June 1970, for the purpose of immediate reenlistment.  

3.  On 8 June 1970, he reenlisted in the RA for 3 years.  

4.  He served in Vietnam from 26 May 1970 through 23 April 1971 during two campaigns.  He was assigned to the 46th Ordnance Company from 30 May to 10 June 1970 and the 23rd Administration Replacement Detachment from 11 June to 18 June 1970.  He was also assigned to F Troop, 8th Cavalry, 123rd Aviation Battalion from 19 June 1970 to 19 April 1971.

5.  While serving in Vietnam, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows: 

* On 24 August 1970, for failing to report to his appointed place of duty
* On 25 September 1970, for disobeying a lawful order

6.  He was promoted to pay grade E-4 on 10 March 1971.

7.  General Orders Number 04464, issued by Headquarters, 23rd Infantry Division, on 19 April 1971, awarded him the Army Commendation Medal for meritorious service in the Republic of Vietnam from May 1970 to April 1971.

8.  He served in Muenster, Germany, from 27 May 1971 through 9 June 1973.  While in Germany he accepted NJP under Article 15 of the UCMJ for the following reasons:

* On 20 September 1971, for disobeying a lawful order
* On 20 March 1972, for failing to report to required duty
* On 8 May 1972, for intending to defraud an individual

9.  His punishment under the 8 May 1971 Article 15 included a reduction to pay grade E-2.

10.  On 30 August 1972, the applicant was notified of the unit commander's intent to separate him with a general discharge for failure to demonstrate adequate potential for advancement.

11.  On 30 August 1972, the applicant's unit commander recommended that he be separated under the provisions of the Qualitative Management Program (QMP) as stated in Department of the Army (DA) Message 242110Z, September 1971, Subject:  Extension of QMP to grade E-1 to E-2 with a general discharge.  The separation was recommended because of the applicant’s failure to demonstrate adequate potential for advancement to the grade of private first class.  The unit commander stated he had counseled and advised the applicant of the conditions jeopardizing his promotion advancement.  The unit commander also stated the applicant’s punishments under Article 15, his job performance, and poor attitude showed him nothing as to the applicant being a Soldier.  The applicant had stated he did not want to be in his company and his attitude showed he did not want to be in the Army.  

12.  On 12 September 1972, the applicant’s battalion unit commander recommended approval of the applicant’s separation for failure to demonstrate adequate potential for promotion advancement.  The battalion commander stated the applicant had been reassigned to another company for rehabilitation purposes on 15 February 1972.

13.  On 4 October 1972, the appropriate authority approved the applicant's separation and directed the issuance of a General Discharge Certificate.  He was accordingly discharged in pay grade E-2 on 30 October 1972 and issued a General Discharge Certificate.

14.  Item 11c (Reason and Authority) of his DD Form 214 contains the entry, “DA MSG DAPE-MPP 242110Z September 1971 Separation Program Number (SPN) 21U.”

15.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the following awards:  the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

16.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Army Commendation Medal, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

17.  The available evidence does not show he was wounded or injured during his service in Vietnam.  There are no orders in his military personnel records awarding him the Purple Heart or the Air Medal.  His name is not listed on the Vietnam casualty roster.

18.  He enlisted in the FLARNG on 9 February 1974 and was honorably discharged at the expiration of his term of service on 8 February 1976.

19.  On 12 December 1978, the Army Discharge Review Board denied his request for an upgrade of his discharge.

20.  He provided a copy of his Progress Notes which show he evaluated for medical problems on 17 June 2009.  He also provided a copy of his Radiology Report which shows a radiology impression revealed a small metallic density projecting over his cervical spine.  It was determined this could be shrapnel located in soft tissue at or near the junction of his neck.

21.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) of the records of his unit and for the time frame he served in Vietnam was conducted.  This review failed to show orders were published or that there is other evidence to indicate authorization for award of the Purple Heart or Air Medal.

22.  Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, specified the narrative reason for SPN 21U, defined in Army Regulation 635-5 (Separation Documents), was "Enlisted Personnel - Separation for failure to demonstrate adequate potential for promotion advancement" and the authority for discharge under this separation program number was DA message DAPE-MPP 242110Z September 1971.


23.  Army Regulation 600-200, chapter 4, set forth policy and prescribed procedures for denying reenlistment under the QMP.  That program was based on the premise that reenlistment was a privilege for those whose performance, conduct, attitude, and potential for advancement met Army standards.  It was designed to enhance the quality of the career enlisted force, selectively retain the best qualified Soldiers to 30 years of active duty, deny reenlistment to non-progressive and nonproductive Soldiers, and encourage Soldiers to maintain their eligibility for further service.  DA (DAPE-MPP) MSG 242110Z, September 
1971, extended the provisions of the QMP to allow for the early separation of Soldiers in the grades of E-1 and E-2 who had failed to demonstrate adequate potential for promotion advancement.  

24.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-2a(6) and 13-2d provide for discharge of individuals if their potential for advancement or leadership is unlikely and they have been convicted by court-martial but not sentenced to a punitive discharge.  Paragraph 13-10 of this regulation provides the service of Soldiers separated under this authority will be characterized as honorable or under honorable conditions as warranted by their military records.

25.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor.  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 inappropriate.

26.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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.

27.  Army Regulation 600-8-22 also states 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.


28.  Army Regulation 600-8-22 further states the Army of Occupation Medal is awarded for service of 30 consecutive days at a normal post of duty in a qualifying location.  The Army of Occupation Medal with Germany Clasp is authorized for service with the Army of Occupation of Berlin between 9 May 1945 and 2 October 1990.  The clasp is a bronze bar with the word "Germany" to denote occupation duty rendered in Europe.

29.  Army Regulation 600-8-22 also authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal.

30.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) confirmed his unit, 123rd Aviation Battalion, was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service, from 31 March – 30 June 1970, based on Department of the Army General Orders Number 42, dated 1972.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows he was awarded the Army Commendation Medal for meritorious service while serving in the Republic of Vietnam which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this medal.

2.  The evidence also shows he was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal with Device (1960).  These awards are not shown on his DD Form 214; therefore, it would be appropriate to add these awards to his DD Form 214.

3.  The evidence further confirms he is entitled to two bronze service stars to be affixed to his Vietnam Service Medal.  Therefore, he is entitled to correction of his DD Form 214 to show these awards.

4.  General orders awarded his unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his assignment to the unit.  Therefore, he is entitled to correction of his records to show this unit award.

5.  With respect to the Purple Heart, he provided no evidence to show he was wounded or injured as a result of hostile action during his period of service in Vietnam.  The evidence of record contains no orders or other documents confirming he was wounded or injured as a result of his participation in direct or indirect combat operations while serving in Vietnam.  His name does not appear on the Vietnam casualty roster.  There were no entries made on his service personnel records to show he was wounded or injured as a result of hostile action.

6.  Absent corroborating evidence confirming his contention (chain of command supporting letters, witness statements, etc.), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

7.  With respect to the Air Medal, he provided no general orders showing he was awarded the Air Medal.  No evidence was found either in his service personnel record or in the ADCARS data base to support award of the Air Medal.  Therefore, he is not entitled to this award and its addition to his DD Form 214.  

8.  With respect to awards related to his service in Germany, the evidence confirms the applicant served in Muenster, Germany, from 27 May 1971 through 9 June 1973.  However, there is no evidence he served in Berlin during the qualifying period of service.  Therefore, he is not entitled to correction of his records to show award of the Army of Occupation Medal with Germany Clasp or its addition to his DD Form 214.

9.  With respect to the upgrade of his discharge:  

	a.  The evidence shows he accepted several punishments under Article 15 between 1970 and 1972 which eventually led to his reduction from pay grade E-4 to E-2 in May 1972.  In August 1972, his unit commander recommended that he be separated under the provisions of the QMP as stated in DA Message 242110Z, September 1971, with a general discharge.  

	b.  The unit commander stated he had counseled and advised the applicant of the conditions jeopardizing his promotion advancement.  The unit commander also stated the applicant’s punishments under Article 15, job performance, and poor attitude showed nothing of him being a Soldier.  

	c.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized the applicant's rights.  The evidence shows he was properly and equitably discharged in accordance with regulations and policies then in effect.  

	d.  His record of service shows he did not meet the standards of acceptable conduct and performance of duty for an honorable discharge.  His entire record of Army service was considered.  He also has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his general discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined 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 adding to Item 24 of his DD Form 214 the Army Commendation Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), and Republic of Vietnam Gallantry Cross with Palm Unit Citation; and providing him a document that includes these corrections.

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 an upgrade of his general discharge to an honorable discharge and award of the Purple Heart, Air Medal, or any other awards for his service in Germany.



      _______ _  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)                                         AR20100011571



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ABCMR Record of Proceedings (cont)                                         AR20100011571



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