IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100017685


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 an honorable discharge.  He also requests reconsideration for award of the Combat Infantryman Badge (CIB).  He further requests any other awards he may be entitled to.

2.  He states he should have been awarded the CIB for service in the Republic of Vietnam (RVN) while attached to the 1st Battalion, 506th Infantry Regiment, 101st Airborne Division as a forward observer (FO)/radio telephone operator (RTO).  He states after he was transferred back to the continental United States (CONUS) his unit was awarded the CIB for combat operations during this time period.

3.  He provides:

* pages 1, 3, 5, and 7 of a self-authored statement, dated 8 July 2007
* photocopies of 3 pictures of various men identified by the applicant as former unit members

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.  With respect to the CIB, this issue was considered by the ABCMR in Docket Number AR20080004261 on 14 August 2008.

3.  Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The staff of the Board reviewed his request for reconsideration for award of the CIB and determined that his request for reconsideration was neither received within one year of the ABCMR's original decision nor did it contain any new evidence.  His request for reconsideration portion does not meet the criteria outlined above; therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

4.  The applicant enlisted in the Regular Army on 19 June 1970 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 36K (Field Communications Crewman).  He was honorably discharged on 27 February 1971 for the purpose of immediate reenlistment.  He reenlisted on 28 February 1971 for a period of
3 years.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.

5.  Records show the applicant served in Vietnam from 5 June 1971 through
28 March 1972.  He was assigned to:

* Battery A, 2nd Battalion (Airmobile), 319th Artillery from 18 June through
4 December 1971
* 372nd Transportation Company from 10 December 1971 through 10 May 1972

6.  On 1 June 1972, following service in the RVN, he was reassigned to Headquarters and Headquarters Company, 1st Brigade, 82nd Airborne Division, Fort Bragg, NC.  
7.  On 26 June 1972, he was reported absent without leave (AWOL) and he remained AWOL until 7 August 1972, when he surrendered to military authorities at Fort Leonard Wood, MO.

8.  On 7 August 1972, he was reassigned to the Personnel Control Facility, Fort Leonard Wood.

9.  Records show he received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for the offenses indicated:

* on 14 August 1972 for being AWOL from 26 June 1972 to 7 August 1972
* on 7 May 1973 for dereliction of duty on 22 April 1973

10.  Records show he was reported AWOL on the following occasions:

* from 1 to 5 December 1972
* from 30 to 31 May 1973
* from 4 June to 29 October 1973 

11.  On 7 November 1973, court-martial charges were preferred against him for being AWOL from 4 June to 29 October 1973.

12.  On 16 November 1973, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

13.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army 

benefits, that he 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. 

14.  In his personal statement that was submitted with his request for discharge, he stated that he no longer wanted to stay in the Army, he was needed at home, and he had adjustment problems.  He further stated his parents were old and needed him more than the Army needed him.

15.  On 29 November 1973, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.  On 4 December 1973, he was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirmed he completed 2 years, 11 months, and 16 days of total active service; 9 months and 24 days of foreign service; and 182 days of time lost due to AWOL and confinement.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the entry "None."

16.  A review item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the:

* National Defense Service Medal
* Parachutist Badge
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal [with Device (1960)]
* one Overseas Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* First Class Gunner [now known as the Sharpshooter Marksmanship Qualification Badge] with Grenade Bar

17.  On 30 March 1982, the Army Discharge Review Board (ADRB) reviewed his request for upgrade of his discharge and undesirable discharge and determined his discharge was properly issued, but the characterization of service was inequitable.  The ADRB granted a change of characterization to general under honorable conditions.  However, the ADRB determined that the reason for discharge and the reentry code were both proper and equitable.

18.  As a result, his original DD Form 214 was voided and a new DD Form 214 (Certificate of Release or Discharge from Active Duty) was issued to reflect a character of service of under honorable conditions.  Item 13 (Decorations, 

Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this DD Form 214 shows the:

* National Defense Service Medal
* Parachutist Badge
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal [with Device (1960)]
* one Overseas Service Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 

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 600-8-22 (Military Awards), 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.  Appendix B shows that during his service in Vietnam, the applicant participated in the following four campaigns:

* Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971)
* Consolidation I (1 July - 30 November 1971)
* Consolidation II (1 December 1971 - 29 March 1972)
* Vietnam Ceasefire Campaign (30 March 1972 - 28 January 1973)

22.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows the 2nd Battalion, 319th Artillery, was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the periods 18 April through 31 August 1971 and 6 through 9 September 1971 by Department of the Army General Order Number 6, dated 1974.

23.  Department of the Army Pamphlet 672-3, paragraph 6 (Miscellaneous Information) states that not more than one award of the Republic of Vietnam Gallantry Cross Unit Citation may be worn by any individual.  Although wear of multiple awards of this unit citation badge is not authorized, official military personnel and historical records will indicate all awards received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded was carefully considered; however, there is insufficient evidence to support this request.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, including two instances of nonjudicial punishment and four periods of AWOL, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory and precludes relief in the form of an honorable discharge.  

5.  In view of the foregoing there is no basis for granting this portion of the applicant's requested relief.

6.  The applicant served during four campaign phases while assigned to Vietnam.  Therefore, he is entitled to four bronze service stars for wear on his 

already-awarded Vietnam Service Medal and correction of his DD Form 214 for the period ending 4 December 1973 to show the bronze service stars.

7.  The applicant's unit was cited for two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his assignment.  Although he is only authorized to wear one of these awards his DD Form 214 for the period ending 4 December 1973 should be corrected to show both awards.

8.  The applicant qualified as a sharpshooter with the grenade.  Therefore, his DD Form 214 for the period ending 4 December 1973 should be corrected accordingly.

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 is 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:

	a. deleting from item 13 of his DD Form 214 for the period ending
4 December 1973 the Vietnam Service Medal; and

	b.  adding to item 13 of his DD Form 214 for the period ending 4 December 1973 the:

* Vietnam Service Medal with four bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation (two awards)
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar

2.  The Board further determined 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 general discharge to an honorable discharge.



      ____________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)                                         AR20100015378



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100017685



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1