BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100024991 


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 and payment for his accrued leave prior to his discharge.  In addition, he requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) by showing:

* his date of birth as 4 November 1949
* his entry date on active duty as 7 July 1969
* his service in the Republic of Vietnam (RVN)
* any and all military awards to which he is entitled

2.  He states his DD Form 214 has several errors on it and that whoever prepared his DD Form 214 apparently did not have access to his military records. 
He further states that he would like to have his discharge upgraded and service awards added to his DD Form 214, which would qualify him for Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides no additional documentation in support of this case.

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.  His military record contains a DD Form 47 (Record of Induction), dated 8 July 1969, that shows he was inducted into the Army of the United States (AUS) on
7 July 1969.  Item 5 (Date of Birth) of the document shows his date of birth as
4 November 1949.  On 13 July 1969, he was honorably discharged to enlist in the Regular Army (RA).

3.  A DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows he enlisted in the RA on 14 July 1969 for a period of 3 years.  Item 21 (Date of Birth) of this document shows his date of birth as 4 November 1949.

4.  He successfully completed basic combat training (BCT) at Fort Campbell, KY and advanced individual training (AIT) at Fort Lee, VA and he was awarded military occupational specialty (MOS) 76P1O (Stock Control and Accounting Specialist).

5.  Special Orders Number 254, dated 26 November 1969, issued by the U.S. Army Quartermaster School Brigade, Fort Lee, VA, shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar
(M-16).

6.  He arrived in the RVN on 23 December 1969 and he was assigned to the U.S. Army Element Vietnam Regional Exchange, Army Air Forces Exchange Service (AAFES), where he performed duties as a warehouseman and assistant warehouse supervisor.  On 19 November 1970, he departed the RVN en route to the continental United States for his next assignment.  He served a total of
10 months and 28 days of service in the RVN.

7.  He was subsequently assigned to Headquarters Company, Walter Reed Army Medical Center (WRAMC), on 8 January 1971, to perform duties in his MOS.

8.  On 16 June 1971, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for the period 2 June 1971 through 5 June 1971.

9.  On 16 August 1971, he was convicted in accordance with his plea by a special court-martial of robbery of money from a fellow Soldier.  His sentence consisted of forfeiture of $94.00 pay per month for 6 months and confinement at hard labor for 4 months.

10.  A DD Form 458 (Charge Sheet), dated 10 May 1972, shows charges were preferred against the applicant for being AWOL for the period 24 October 
1971 through 27 March 1972.

11.  On 11 May 1972, after consulting with counsel, the applicant submitted a request for 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.  He acknowledged in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

12.  The applicant indicated in a statement in his own behalf that he successfully completed BCT and AIT and he received excellent conduct and efficiency ratings.  From there he was assigned to the RVN, where he served as a supervisor for the shipping section of the Regional Exchange.  He returned from the RVN and he was assigned to WRAMC, where he worked as a supply specialist.  There he received excellent conduct and efficiency ratings also.  However, in the latter part of his stay there, certain problems developed at his home.  He felt as though he was needed to help solve them, which was the reason why he went AWOL.

13.  On 25 May 1972, having considered the applicant's statement, the appropriate authority approved his request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of a General Discharge Certificate.  On 9 June 1972, he was discharged accordingly.  He completed 2 years, 5 months, and 8 days of total active service with 175 days of time lost.

14.  The applicant was separated from the service on temporary records.  His
DD Form 214 shows in:

* Item 9 (Date of Birth) the entry 11 Apr 49 (11 April 1949)
* 
Item 11d (Effective Date) the entry 9 Jun 72 (9 June 1972), indicating his date of separation
* Item 17c (Date of Entry) the entry 14 Jul 69 (14 July 1969), indicating the date he entered active service
* Item 22a(1) (Net Service This Period) the entry "2  5  1," indicating
2 years, 5 months, and 1 day of net service
* Item 22a(2) (Other Service) the entry 7 days (indicating 7 days of active service in the AUS)
* Item 22a(3) (Total) the entry "2  5  8," indicating his total service
* Item 22b (Total Active Service) the entry "2  5  8"
* Item 22c (Foreign and/or Sea Service) the entry "USARPAC – See
Item #30"
* Item 30 (Remarks) the entry "Item 22c - Foreign service cannot be verified from available documents”

15.  His DD Form 214 further shows the entry "Unknown" for:

* Item 23a (Specialty Number and Title)
* Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Authorized or Awarded)
* Item 25 (Education and Training)
* Item 26b (Days Accrued Leave Paid)

16.  Item 30 of his DD Form 214 shows the entry "Lump sum payment for accrued leave was not made; a final settlement to be made by the U.S. Army Finance Center, Indianapolis, Indiana."

17.  Item 27 (Military Education) of his DA Form 20 (Enlisted Qualification Record) shows he completed the stock control and accounting specialist course [76P1O] in 1969.

18.  Item 41 (Awards and Decorations) of his DA Form 20 shows the:

* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rife Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Automatic Rife Bar (M-16)

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 three campaigns:

* Vietnam Winter - Spring 1970 (1 November 1969 - 30 April 1970)
* Sanctuary Counteroffensive (1 May - 30 June 1970) 
* Vietnamese Counteroffensive Phase VII (1 July 1970 - 30 June 1971) 

22.  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.  Paragraph 6d states that Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Army Vietnam, and its subordinate units, during the period 20 July 1965 to 28 March 1973.

23.  Army Regulation 635-5 (Separation Documents) in effect at that time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized preparation of the DD Form 214.  In pertinent part, it stated the DD Form 214 was a synopsis of the Soldier’s most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The regulation further stated that a DD Form 214 would be issued at the time of separation to members of the Reserve component, and the AUS without component, called or ordered to active duty or active duty for training for a period of 90 days or more. 

24.  Army Regulation 635-5, in effect at the time, stated for:

	a.  Item 9, the entry was "self-explanatory";

	b.  Item 11d, enter the date separation is accomplished;

	c.  Item 17c, enter the date entered on active duty or date enlistment or reenlistment was accomplished

	d.  Item 22a(1), enter total service completed between dates shown in Items 17c and 11d of the DD Form 214, less time lost under Title 10, U.S. Code, section 972 and time lost subsequent to normal expiration of term of service;

	e.  Item 22a(2), enter all prior service excluding any service shown in
Item 22a (1);

	f.  Item 22a(3), the entry was "self-explanatory";

	g.  Item 22b, enter the total active service the individual has completed beginning with the earliest period of active service up to and including current period of active duty, less time lost under Title 10, U.S. Code, section 972.

	h.  Item 22c, enter the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and last oversea theater in which service was performed, e.g., U.S. Army Vietnam (USARV);

	i.  Item 23a, enter the primary MOS code number and title;

	j.  Item 24, enter from Item 41 of the DA Form 20 all decorations, service medals, campaign credits, and badges awarded or authorized;

	k.  Item 25, enter installation training courses (qualification courses), military correspondence courses, and off-duty courses the enlisted person has completed successfully during the period covered by the DD Form 214;

	l.  Item 26b, enter the number of days for which individual was paid for accrued leave; and

	m.  Item 30, service after 5 August 1964, enter inclusive dates of service for the RVN and indicating “yes” or "no” for service in Indochina and Korea.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DD Form 214 shows that he was separated from the service on temporary records.  Evidence of record shows he was born on 4 November 1949.  Therefore, Item 9 of his DD Form 214 should be corrected to show his date of birth as 4 November 1949.

2.  Evidence of record shows he was inducted into the AUS on 7 July 1969 and he was honorably discharged on 13 July 1969 to enlist in the RA.  His DD Form 214 for the period ending 9 June 1972 shows his total active service as 2 years, 5 months, and 8 days, which includes the 7 days of active service in the AUS.  As he did not serve 90 days in the AUS, he was properly not issued a DD Form 214.  Therefore, there is no basis for amending his DD Form 214 for the period ending 9 June 1972 to show he entered active service this period on 7 July 1969. However, as a matter of equity, he should be issued an appropriate document to confirm his active duty service in the AUS for the period 7 July 1969 through 
13 July 1969.

3.  Evidence of record shows he served in the RVN during the period 
23 December 1969 through 22 November 1970.  Therefore, his DD Form 214 should be corrected to show in:

* Item 22c, the entry "USARV - 0  10  28"
* Item 30, the entry "Vietnam - 23 December 1969 through 22 November 1970, Indochina - yes, Korea - no."

4.  His DA Form 20 shows he successfully completed the 5-week Stock Control and Accounting Specialist course in 1969, at Fort Lee, VA and that he was awarded MOS 76P1O.  Therefore, his DD Form 214 should be corrected to show in:

* Item 23a, the entry "76P1O Stock Control and Accounting Specialist"
* Item 25, the entry "Stock Control and Accounting Specialist Course, 5 weeks, 1969"

5.  Evidence of record shows he was awarded the:

* National Defense Service Medal
* RVN Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rife Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Automatic Rife Bar (M-16)

Therefore, Item 24 should be corrected to show these awards.

6.  Evidence of record shows he was awarded the Vietnam Service Medal.  Records also show he participated in three campaign phases during his service in Vietnam.  Therefore, Item 24 of his DD Form 214 should be corrected to show the Vietnam Service Medal with three bronze service stars.

7.  All units in Vietnam were awarded the RVN Gallantry Cross with Palm Unit Citation during his period of service.  Therefore, Item 24 of his DD Form 214 should be corrected to show this unit award.

8.   The applicant contends that his discharge should be upgraded so that he may receive DVA benefits.  However, the ABCMR does not correct records solely for the purpose of obtaining eligibility for DVA benefits.

9.  His administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  All requirements of law and regulations were met and his rights were fully protected throughout the separation process.

10.  His record shows he was convicted by a special court-martial; he received one Article 15; and he had two instances of AWOL, one for an extensive period.  He completed on 2 years, 5 months, and 8 days of creditable active service, with 175 days of time lost due to AWOL and military confinement.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

11.  He further contends that he was not paid accrued leave prior to his discharge.  His DD Form 214 indicates that he was not paid a lump sum payment for accrued leave and that the U.S. Army Finance Center, Indianapolis, IN, would make his final pay settlement.  However, there is no evidence in his military records and he has provided no evidence that shows he was not paid for accrued leave.  Therefore, there is an insufficient basis for granting this portion of his request.

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:

	a.  deleting from Item 9 of his DD Form 214 the entry "11 Apr 49” and replacing it with the entry "4 Nov 49”;

	b.  deleting from item 22c of his DD Form 214 the entry "USARPAC - See Item #30" and replacing it with the entry "USARV - 0  10  28";

	c.  deleting from Item 23a the entry "Unknown" and replacing it with the entry 
“76P1O  Stock Control and Accounting Specialist”;

	d.  deleting from Item 24 of his DD Form 214 the entry "Unknown" and replacing it with the entry:

* National Defense Service Medal
* Vietnam Service Medal with three bronze service stars
* 
Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar (M-16)

	e.  adding in Item 25 of his DD Form 214 the entry “Stock Control and Accounting Specialist Course, 5 weeks, 1969”;

	f.  deleting from Item 30 of his DD Form 214 the entry “Foreign service cannot be verified from available documents” and replacing it with the entry “Vietnam - 23 December 1969 through 22 November 1970, Indochina - Yes, Korea - No”; and

	g.  issuing the applicant an appropriate document to confirm his active duty service in the AUS from 7 July 1969 through 13 July 1969.

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 general discharge to an honorable discharge
* amending his date of entry on active service on his DD Form 214 to 7 July 1969
* paying him for any accrued leave



      _________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)                                         AR20100024991



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ABCMR Record of Proceedings (cont)                                         AR20100024991



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