IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100013512 


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 the following:

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

	b.  award of the Purple Heart; and

	c.  correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) as follows:

		(1)  item 3 (Social Security Number (SSN)) to show the last three digits of his SSN as "849" instead of "548,"

		(2)  item 9 (Date of Birth (DOB)) to show his DOB as 16 April 1951 instead of 23 April 1951, and

		(3)  item 26a (Non-Pay Periods Time Lost) to show no time lost.

2.  The applicant states he sustained several injuries and contracted malaria in Vietnam.  He was medically evacuated to Walter Reed Army Medical Center where he remained for 2 weeks.  He was then transferred to Fort Jackson, SC, where he stayed for a whole year.  During that 1-year stay, he contracted hepatitis and was subsequently transferred to Fort Hood, TX, where he remained for 1 month and returned to Fort Jackson, SC.  While there, he was informed he was absent without leave (AWOL) and spent 2 days in confinement.  He was ultimately discharged under the provisions of chapter 10 of Army Regulation 
635-200 (Personnel Separations) without being given the opportunity to understand what was going on.  He was forced to accept a chapter 10 discharge and he was told his separation papers would be mailed.

3.  The applicant provides his DD Form 214.

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 was issued a DD Form 215 (Correction to DD Form 214) on 15 May 2008 that corrected his SSN.  He was provided with a copy of this DD Form 215 by separate correspondence.  Therefore, the issue of his SSN will not be discussed further in this Record of Proceedings.

3.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 22 October 1970.  Item 21 (DOB) of his DD Form 4 (Enlistment Record - Armed Forces of the United States) shows his DOB as 23 April 1951.  He authenticated this form by placing his signature in the appropriate place.

4.  Item 6 (DOB) of his DA Form 20 (Enlisted Qualification Record) which was created upon his entry on active duty shows his DOB as 23 April 1951.  He also authenticated this form by placing his signature in the appropriate place.

5.  He completed basic combat and advanced individual training and was awarded military occupational specialty 72B (Communications Center Specialist). The highest rank/grade he attained during this period of military service was private first class/E-3.

6.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 1 March 1971 for failing to go at the time prescribed to his appointed place of duty
* on 22 June 1971 for being AWOL from 9 June 1971 to 21 June 1971

7.  His records also show he arrived in Vietnam on 5 July 1971 and was assigned to Headquarters Company, 8th Radio Research Field Station.  He departed Vietnam on 21 July 1971 in a patient status to Fort Jackson, SC.

8.  Item 40 (Wounds) of his DA Form 20 does not show a combat wound or injury and item 41 (Awards and Decorations) of this form does not show award of the Purple Heart.

9.  His records do not contain official orders awarding him the Purple Heart and his name is not shown on the Vietnam casualty roster.

10.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to him.

11.  On 7 January 1972, subsequent to his reassignment to Fort Hood, TX, he was reported as AWOL and he was dropped from the Army rolls on 17 March 1972.  He returned to military control at Fort Hood, TX, on 8 May 1972.  The DD Form 3545 (Deserter Wanted by the Armed Forces) listed his DOB as 23 April 1951.

12.  On 24 May 1972, court-martial charges were preferred against him for one specification of being AWOL during the period on or about 9 February 1972 to on or about 8 May 1972.

13.  On 30 May 1972, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200.

14.  In his request for discharge, he indicated he was submitting this request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He also acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could expect to encounter substantial prejudice in civilian life, could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further elected to submit a statement in his own behalf wherein he stated he was doing wrong in the service, that it started small and got big, that everything in Vietnam made him hate the service, and that he wanted to get out.

15.  On 12 June 1972, his immediate and intermediate commanders recommended approval of the discharge with an Undesirable Discharge Certificate.

16.  On 29 June 1972, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 12 July 1972, the applicant was accordingly discharged.

17.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service in lieu of a trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year, 3 months, and 13 days of creditable active military service and had 159 days of lost time.  Additionally, this form shows the following entries:

* item 9 shows his DOB as 23 April 1951
* item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart
* item 26a shows 159 days of lost time from 9 to 22 June 1971, 7 to 10 January 1971, 9 February to 4 June 1972, and 17 June to 12 July 1972

18.  On 30 April 1974, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

20.  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.

21.  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.

22.  Army Regulation 600-8-22 (Military Awards) provides that 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.

23.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and provides the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Item 26a of the version in effect at the time shows time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after the expiration of term of service will be entered.  Lost time under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however, the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.


DISCUSSION AND CONCLUSIONS:

1.  With respect to his character of service, the evidence of record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He consulted with counsel and was advised of the contemplated trial by court-martial for his offenses.  Only then did he voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  There is no evidence in the available records and the applicant did not provide documentation that would warrant an upgrade of his discharge.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

3.  With respect to the Purple Heart, the criteria for this award requires the submission of substantiating evidence to verify the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

4.  His record is void of any orders that show he was awarded the Purple Heart, his name is not shown on the Vietnam casualty roster, and his DA Form 20 does not indicate any reportable wounds.  In the absence of corroborating evidence that conclusively shows he was wounded or injured as a result of hostile action, there is insufficient evidence upon which to award him the Purple Heart in this case.

5.  With respect to his DOB, the evidence of record shows that upon his enlistment and entry on active duty he listed his DOB as 23 April 1951.  This DOB is consistent with the DOB shown on several documents in his service record throughout his entire military service.  He authenticated several documents by placing his signature in the appropriate blocks indicating the date on each form was correct.  He did not use the requested DOB during his military service.

6.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the applicant's DOB in this case.

7.  With respect to the lost time, the evidence of record shows he was reported as AWOL or in confinement on multiple occasions for a total period of 159 days.  By law and regulation, his periods of AWOL or confinement are considered lost time and are not creditable service for pay, retirement, or veterans' benefits, and are appropriately recorded on his DD Form 214.

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)                                         AR20100013512



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ABCMR Record of Proceedings (cont)                                         AR20100013512



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