IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100016763 


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:

* Upgrade of his general discharge to a fully honorable discharge
* Award of the Air Assault Badge

2.  The applicant states the upgrade is requested based on his service in the jungles of Vietnam that involved firefights in and around the A Shau Valley and his award of the Purple Heart and the Bronze Star Medal with "V" Device.  He experienced severe post-traumatic stress disorder (PTSD) which was responsible for his drug use, divorce, and difficulty holding a job.  He adds that he participated in many combat assaults while serving with the 101st Airborne Division in Vietnam and that some of the LZs (Landing Zones) were hot. 

3.  The applicant did not provide any additional evidence. 

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 records show he was inducted into the Army of the United States on 15 November 1967 and held military occupational specialty 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam from 27 April 1968 to 2 February 1970.  He was assigned to Company C, 2nd Battalion, 501st Infantry.  

3.  While in Vietnam, he was honorably discharged on 14 January 1969 for the purpose of immediate enlistment and he executed a 3-year enlistment on          15 January 1969.  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4. 

4.  On 13 September 1969, in Vietnam, he pled guilty and he was convicted by a special court-martial of one specification of willfully disobeying a lawful order to go on a field patrol and one specification of willfully disobeying a lawful order to go on a detail at a fire base.  The court sentenced him to a forfeiture of $82.00 pay per month for 4 months, confinement at hard labor for 4 months, and reduction to the lowest enlisted grade. 

5.  On 24 September 1969, the convening authority approved the sentence but suspended the adjudged confinement for 4 months.  However, on 3 December 1969, the suspended confinement was vacated and ordered executed.

6.  On 18 March 1970, at Fort Hood, TX, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 13 to 17 March 1970.

7.  On 13 April 1970, he underwent a psychiatric evaluation after he told his commander he was incapable of coping with the military life and the duties it demanded.  He also stated he had reenlisted while in Vietnam under duress and that he did so to get out of the field and to avoid getting shot at.  He felt he could no longer tolerate the service and would do anything to get out.  On examination, he was determined to be alert and cooperative with no evidence of any thought disorder, psychosis, or neurosis.  There were no indications that warranted processing him through medical channels. 

8.  On 17 April 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for driving a vehicle without registration and running a red light.

9.  On 1 May 1970, at Fort Hood, he pled guilty and he was convicted by a summary court-martial of one specification of breaking restriction.  The court sentenced him to a forfeiture of $35.00 pay per month for one month and 14 days of restriction.  The convening authority approved the sentence on the same date; however, on 14 May 1970, the convening authority ordered the findings of guilty and the sentence set aside and ordered a rehearing.

10.  On 7 May 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on two separate occasions and for breaking restriction

11.  On 5 June 1970, he pled guilty and was convicted by a summary court-martial of one specification of breaking restriction.  The court sentenced him to a forfeiture of $35.00 pay per month for one month and 14 days of restriction.  The convening authority approved the sentence on the same date.  However, on 14 May 1970, the convening authority ordered the findings of guilty and the sentence set aside.

12.  On 27 June 1970, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge-Unfitness and Unsuitability) for unfitness.  The immediate commander cited the various NJPs and courts-martial and he recommended an Undesirable Discharge Certificate.

13.  On 29 June 1970, applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and appearance before a board of officers and he elected not to submit a statement on his own behalf. 

14.  He further acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He further understood that as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.  

15.  On 7 July 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for failing go at the time prescribed to his appointed place of duty.

16.  On 10 July 1970, the applicant's immediate commander initiated separation action against him under Army Regulation 635-212 for unfitness.  The immediate commander recommended an Undesirable Discharge Certificate.  He indicated the applicant had demonstrated his unwillingness to face the military responsibilities as evidenced by his NJPs and courts-martial.  His conduct and efficiency ratings had been mostly unsatisfactory.  He had been counseled by the immediate commander or first sergeant on at least 8 occasions.  His elimination from the Army was most appropriate.

17.  On 18 and 21 July 1970, his intermediate and senior commanders recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate.  The intermediate commander stated the applicant had been in frequent trouble in other units before his assignment to his unit and that any further retention would create serious disciplinary problems.

18.  On 11 August 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness and directed the issuance of an Undesirable Discharge Certificate.

19.  On 8 September 1970, he underwent a separation physical at Fort Hood.  He indicated he was in good health and the military doctor found him qualified for discharge. 

20.  He was subsequently discharged on 9 September 1970.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he had completed a total of 2 years, 7 months, and 15 days of creditable active military service with 71 days of lost time.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Bronze Star Medal with "V" Device
* Purple Heart
* Combat Infantryman Badge
* four overseas service bars
* Republic of Vietnam Campaign Medal
* Vietnam Service Medal
* Army Commendation Medal
* Sharpshooter Marksmanship Qualification Badge with Machinegun Bar
* 
National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Air Medal

21.  There is no evidence of record and he did not provide any evidence that shows he completed an air assault training course while assigned or attached to the 101st Airborne Division.

22.  On 22 September 1971, the Army Discharge Review Board (ADRB) denied his petition for an upgrade of his discharge.

23.  On 23 November 1981, the ADRB reconsidered his request for an upgrade and granted him relief with respect to the character of service to a general discharge.  Accordingly, his original DD Form 214 was voided and he was issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows a general discharge. 

24.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

25.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy for the separation of enlisted personnel.  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.

26.  Army Regulation 600-8-22 (Military Awards) states the basic eligibility criteria for award of the Air Assault Badge consists of satisfactory completion of an air assault training course according to the Training and Doctrine Command (TRADOC) standardized Air Assault Core Program of Instruction or the standard Air Assault Course while assigned or attached to the 101st Airborne Division (Air Assault) since 1 April 1974.  The badge approval authority is commanders of divisions and separate brigades or the commander of the 101st Airborne Division (Air Assault).
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed habits and traits of character manifested by frequent incidents of discreditable nature with military authorities as evidenced by his extensive history of misconduct.  Accordingly, his chain of command initiated separation action against him.  

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The applicant's service in Vietnam and his valor awards are acknowledged.  However, there is no evidence that his offenses of AWOL, disobeying orders, failing to repair, breaking restriction, and other infractions were a result of his service in Vietnam.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

5.  With respect to the Air Assault Badge, award of this badge requires satisfactory completion of an air assault training course according to the U.S. Army TRADOC standardized Air Assault Core Program of Instruction, or completion of the standard Air Assault Course while assigned or attached to the 101st Airborne Division (Air Assault) after 1 April 1974.  There is no evidence the applicant met this criteria.  Therefore, he is not entitled to this award.

6.  In view of the foregoing, there is no basis for granting his requested relief.

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)                                         AR20100016763



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ABCMR Record of Proceedings (cont)                                         AR20100016763



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