IN THE CASE OF:	  

		BOARD DATE:	    28 September 2010

		DOCKET NUMBER:  AR20100011833 


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 submitted two separate applications; his requests have been consolidated and will be acted on in a single record of proceedings.  In his first application he requests that he be awarded the Combat Infantryman Badge.  

2.  In his second application he requests, in effect, that his 1971 discharge, which was upgraded from undesirable to general under honorable conditions based on the Department of Defense (DOD) Special Discharge Review Program (SDRP) be affirmed so that he may be eligible for benefits from the Department of Veterans Affairs (VA).

3.  The applicant states, in effect, he was awarded military occupational specialty (MOS) 76A (Supply) but he served in MOS 11B (Infantryman) for 28 months while he was in Vietnam.  He stated in the request associated with the characterization of his service I “got the upgrade already but I guess you haven’t put it in the computers” and “got the upgrade you didn’t give me any benefits.”

4.  The applicant provides a copy of his 1971 report of medical examination which shows his specialties as MOS 76A, MOS 11B, and MOS 11C, and that he performed duties in these capacities for 28 months, with the last 6 months in MOS 11B.  He also submitted a copy of a letter from the VA which indicated that he was “not eligible for gratuitous benefits” but he was entitled to treatment at a VA hospital for any condition determined to be caused or aggravated by his military service.  That same letter instructed the applicant to submit an application to this Board to change the character of his 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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 28 March 1969.  He completed training as a supply clerk and was awarded MOS 76A prior to being assigned to Fort Bragg, North Carolina in December 1969.  

3.  In June 1970 the applicant assumed duties as a rifleman in MOS 11B at Fort Bragg.  However, there was no indication he was awarded MOS 11B.  

4.  In October 1970 the applicant was reassigned to Vietnam for duty in MOS 76A.  On 6 November 1970 orders were issued promoting the applicant to pay grade E-3 in MOS 76A.  On 25 November 1970 he was assigned duties in MOS 76Y as an armorer and by February 1971 he was assigned duties as a rifleman in MOS 11B with the 503rd Infantry.

5.  Although the applicant’s file does contain orders which reflect MOS 11B or 11C in the standard name line, the majority of orders indicate his MOS was 76A.  There are no orders or other documents in the applicant’s file which indicate he was ever officially awarded MOS 11B or 11C.  The applicant’s 1971 discharge order and his 1971 DD Form 214 (Report of Separation) show his MOS as 76A.

6.  The applicant’s file notes he was punished five times under Article 15 of the Uniform Code of Military Justice (UCMJ) between August 1969 and December 1970 for a variety of infractions including short periods of being absent without leave (AWOL), failing to be at his appointed place of duty, and disobeying an order.  In February 1971 he was convicted by a summary court-martial of three specifications of failing to be at his appointed place of duty.


7.  In June 1971, while the applicant was still in Vietnam, charges were preferred against him for failing to be at his appointed place of duty, disobeying an order by being in an off-limits area, possession of marijuana, and breaking restriction.  The applicant subsequently requested discharge for the good of the service under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  His request was approved and on 18 July 1971 he was discharged and issued an undesirable discharge (UD) Certificate.  At the time he was credited with completing 2 years, 3 months, and 5 days of active Federal service of which 9 months and 18 days were served in Vietnam.  He also had 16 days of lost time.

8.  In 1977 the applicant’s discharge was upgraded to under honorable conditions under the DOD SDRP.  His original DD Form 214 was voided and he was issued a new DD Form 214 reflecting his new characterization of service.

9.  The DOD SDRP was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received UDs (the equivalent now being a discharge under other than honorable conditions) or general discharges during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.  It further indicated that members who received a UD during the Vietnam era would have their discharges upgraded if they met one of the following criteria:  wounded in combat in Vietnam, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia, completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974, or received an honorable discharge from a previous tour of military service.

10.  The SDRP also provided secondary criteria that allowed the Army Discharge Review Board (ADRB) to upgrade a discharge if the board believed such upgrade was appropriate based on all the circumstances of a particular case, and on the quality of civilian record made since discharge.  Factors to be considered included:  age, general aptitude, and length of service at time of discharge; education level at time of discharge; entered service from a deprived background; possible personal distress which could have contributed to the acts that led to discharge; entered military with waiver of normally applicable standards; actions that led to discharge alleged at the time to have been motivated by conscience; was discharged for abuse of drugs or alcohol and, if so, any contributing or extenuating circumstances; and record of good citizenship since discharge.  



11.  In 1978 the applicant was informed that the previously-upgraded discharge had been re-reviewed by the ADRB as required by Public Law 95-126.  As a result of that review, the ADRB determined the applicant did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, the applicant was informed his upgraded discharge under the DOD SDRP was not affirmed.  A DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) was issued, reflecting the appropriate change in his records.  The applicant was also informed the DD Form 215 in no way changed or modified the upgraded discharge he previously received.  However, because of a new law, he would not be able to use the discharge to qualify for benefits under the VA.

12.  Public Law 95-126 enacted on 8 October 1977, provided generally that no VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977 or the DOD SDRP.  It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases.  The services were required to individually compare each discharge previously upgraded under one of the SDRPs to the uniform standards and to affirm only those cases which met those standards.  On 29 March 1978, these newly-established uniform discharge review standards were published in DOD Directive Number 1332-28.  

13.  Army Regulation 600-8-22 (Military Awards) states 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 (USARV) Regulation 672-1 states 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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant may have served in MOS 11B while in Vietnam, there is no evidence he was ever actually officially awarded this MOS and as such he would not be eligible for the Combat Infantryman Badge.  It is noted the applicant himself admits his MOS was 76Y and that he performed the duties of an infantryman.

2.  The applicant was originally discharged under the provisions of Army Regulation 635-200, Chapter 10, and issued a UD.  There is no evidence and the applicant has not provided any that shows his discharge was in error or improper.  Clearly his multiple infractions resulting in numerous UCMJ actions, a summary court-martial, and what precipitated his administrative discharge in lieu of trial by court-martial is evidence that his service does not warrant upgrading the character of his service as a separate action by this Board.

3.  The fact that the character of his service was upgraded by the DOD SDRP in 1977 and then subsequently not affirmed under the provisions of Public Law 
95-126 also does not serve as a basis to now upgrade the character of his service.  His inability to secure benefits denied by the VA is also not a basis to change his record.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100011833



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ABCMR Record of Proceedings (cont)                                         AR20100011833



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