BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100022883 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show, in effect:

* his characterization of service is honorable
* award of the Purple Heart, Parachutist Badge, and all of his unit citations
* he was granted disability for shrapnel wounds to the left shoulder and for the jungle rot that is on his legs 
* he was exposed to Agent Orange

2.  The applicant states he was wounded by shrapnel to the left shoulder by friendly fire when .155mm howitzer rounds landed in front of his platoon.  He goes on to state that he was sucked out of his fox hole and the next day he was medically evacuated to the 67th Evacuation Hospital in Quin Nhon.  He further states the Purple Heart was offered to him and he refused it at the time, but now he is reconsidering that decision.

3.  The applicant provides:

* a statement explaining his application
* a list of corrections he desires to be made
* a copy of 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 enlisted in the Regular Army in Houston, Texas on 10 April 1970 for a period of 3 years and training in military occupational specialty (MOS) 31M (Radio Relay and Carrier Attendant).  He completed basic training at Fort Polk, Louisiana and he was transferred to Fort Gordon, Georgia to undergo advanced individual training (AIT).  

3.  He was academically released from the MOS 31M course and transferred back to Fort Polk to undergo AIT in MOS 11B (Light Weapons Infantryman).  He completed that training and he was transferred to Fort Benning, Georgia to undergo airborne training.

4.  He completed airborne training, was awarded the Parachutist Badge, and departed for Vietnam on 20 December 1970.  He was initially assigned to Company D, 1st Battalion, 503rd Infantry Regiment, 173rd Airborne Brigade.  On 11 April 1971, he was transferred to Company A, 4th Battalion, 503rd Infantry Regiment.

5.  On 27 May 1971, nonjudicial punishment was imposed against him for disobeying a lawful order from a superior commissioned officer and for being derelict in the performance of his duties as a sentry on guard duty.

6.  On 15 August 1971, he departed Vietnam and he was transferred to Fort Campbell, Kentucky with his unit. 

7.  On 21 September 1971, he terminated his airborne status and on 7 October 1971 orders were published which revoked his award of the Parachutist Badge.


8.  On 16 November 1971, he went absent without leave (AWOL) and remained absent in a desertion status until he was returned to military control at Fort Hood, Texas on 1 March 1972.  Charges were preferred against him for this period of AWOL on 4 April 1972.

9.  On 5 April 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10, in lieu of trial by court-martial.  He indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  He elected to submit a statement in his own behalf through his defense counsel in which he stated that he went AWOL in order file for divorce and obtain custody of his daughter.  He also stated that his family was experiencing financial difficulties and he remained to assist them as well.

10.  On 20 April 1972, the appropriate authority (a lieutenant general) approved the applicant's request for discharge and directed that he be furnished a General Discharge Certificate.

11.  Accordingly, on 27 April 1972, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with a general discharge.  He had served 1 year, 9 months, and 3 days of total active service and he had 106 days of lost time due to being AWOL.

12.  His DD Form 214 shows he was awarded the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal, and the Combat Infantryman Badge.

13.  On 9 December 1979, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 22 September 1980, the ADRB determined his discharge was both proper and equitable and voted unanimously to deny his request.

14.  A review of the applicant’s official records and the Vietnam Casualty Listing failed to reveal the applicant was wounded in action or that he was treated for any such wounds or that he was reported as a casualty.

15.  The applicant's medical records are not available for review by the ABCMR.  However, his issue regarding exposure to Agent Orange and jungle rot are issues that do not fall within the purview of the ABCMR and are best addressed by the Department of Veterans Affairs.  Accordingly, they will not be discussed any further in these proceedings.

16.  Army Regulation 600-8-22 (Military Awards) states 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.

17.  Army Regulation 600-8-22 also provides for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

18.  Army Regulation 600-8-22 states the National Defense Service Medal (NDSM) is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined.

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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions was then and is still 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.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of Soldiers for campaign participation credit, assault landing credit, and unit citation badges 
awarded during the Vietnam Conflict.  It shows that the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm (RVNGC w/Palm) Unit Citation and the RVN Civil Actions Honor Medal First Class (RVNCAHM-FC) Unit Citation during the period the applicant was assigned to the unit.

22.  Army Regulation 600-8-22 states any Parachutist Badge may be revoked when the awardee: (a) is punished under the Uniform Code of Military Justice for refusal to participate in a parachute jump or (b) initiates action which results in termination of airborne status or withdrawal of any Career Management Field (CMF) 18 military occupational specialty (MOS), MOS 180A, or special skill identifier (SSI) 18A before he or she completes 36 cumulative months of airborne duty.  Any Parachutist Badge will be retained if the Soldier is unable to complete 36 cumulative months of airborne duty through no fault of his or her own; for example, injury or reassignment under favorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the nature of his misconduct and the length of his absence.  His service simply did not rise to the level of a fully honorable discharge.

4.  The applicant’s contention that he should be awarded the Purple Heart has been noted and found to lack merit.  The evidence of record fails to show the applicant was wounded in Vietnam as a result of shrapnel by enemy action or friendly fire or that he was treated and the treatment was made a matter of record.  Therefore, in the absence of such evidence there appears to be no basis to award him the Purple Heart at this time.
5.  The applicant’s contention that his Parachutist Badge should be added to his records has also been noted and found to lack merit.  The applicant’s Parachutist Badge was revoked when he terminated his jump status and there is no evidence to show that it was ever reauthorized it or that it was improperly revoked.

6.  However, the evidence of record does show that he served during a period that qualifies him for award of the NDSM.  His unit was also awarded the RVNGC w/Palm Unit Citation and the RVNCAHM-FC Unit Citation.  Accordingly, those awards should be added to his records at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 the NDSM, the RVNGC w/Palm Unit Citation and the RVNCAHM-FC Unit Citation to his DD Form 214.

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 upgrading his discharge, awarding him the Purple Heart and adding the award of the Parachutist Badge to his DD Form 214.




      _______ _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)                                         AR20100022883



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ABCMR Record of Proceedings (cont)                                         AR20100022883



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