BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100025789 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show awards of the Purple Heart with oak leaf clusters and the Silver Star for bravery.

2.  The applicant states he served his country in wartime for 6 years including two tours of duty in Vietnam, he reenlisted twice, he received a Purple Heart with oak leaf clusters and a Silver Star for bravery.  He also states he was to receive a Presidential citation for bravery after saving the lives of 15 people following an automobile crash in Germany, but it was not awarded.  After his court-martial in 1971 he served his full sentence in military prisons.  Most importantly, the Army guaranteed him that the characterization of his discharge would be changed to under honorable conditions at the end of 6 months.

3.  The applicant provides a self-authored statement and three statements of medical treatment.

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 born on 16 March 1951.  He enlisted in the Regular Army on 18 March 1968 at 17 years of age and he held military occupational specialty 11B (Light Weapons Infantryman).

3.  He was honorably discharged for the purpose of immediate reenlistment on 10 December 1968 while he was assigned to Company C, 1st Battalion, 509th Infantry, Mainz, Germany.  The DD Form 214 he was issued for this period of service shows he completed 8 months and 23 days of active service with 3 months and 14 days of foreign service in U.S. Army Europe (USAREUR).

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 28 April 1969, for breaking restriction on 26 April 1969
* on 10 March 1970, for disobeying a lawful order on 9 March 1970

5.  He was honorably discharged for the purpose of immediate reenlistment on 18 March 1970 while he was assigned to Company B, 8th Medical Battalion, Wackernheim, Germany.  The DD Form 214 he was issued for this period of service shows he completed 1 year, 3 months, and 8 days of active service during this period with 1 year, 3 months, and 8 days of foreign service in USAREUR.

6.  On 28 May 1970, he was reported absent without leave (AWOL) from his assigned unit at Fort Lewis, WA.  On 27 January 1972, he was apprehended by civil authorities and he was returned to military control on the same date.

7.  On 24 February 1972, his immediate commander initiated separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) for misconduct – prolonged unauthorized absence for more than 1 year – desertion.

8.  On 25 February 1972, he consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  He further acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

9.  On 25 February 1972, his chain of command recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

10.  On 2 March 1972, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 and directed the issuance of an Undesirable Discharge Certificate.

11.  On 29 March 1972, he was discharged accordingly.  The DD Form 214 he was issued for this period of service shows he completed 2 years, 3 months, and 24 days of total active service with 618 days of lost time.

12.  His records contain a Constructive Notice of Discharge, dated 29 March 1972, wherein it states the applicant was discharged while in an AWOL status.

13.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the entry "unknown."

14.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is void of any entry.  His records do not contain official orders for award of the Purple Heart and his name is not shown on the Vietnam casualty roster.

15.  There are no orders in his records that show he was awarded the Silver Star.

16.  There is no evidence in his records that shows he served in Vietnam.

17.  On 16 March 1982, the Army Discharge Review Board determined he had been properly discharged and denied his request for an upgrade of his discharge.

18.  The applicant provides a self-authored statement wherein he states the characterization of his discharge has significantly affected his life in a negative way as he is ineligible to receive VA medical benefits and he has been a law-abiding citizen for the 38 years since his discharge from the Army.  He further states he served his country in a time of war as a brave Soldier who chose to serve two tours of duty in Vietnam and reenlisted in a unit that was distinguished by its commitment to duty.  He also engaged in actions contrary to the Military Code of Conduct.  However, he does not seek to exonerate himself from his actions, but only to secure the benefits and the return of his medals as a result of service to his country in three tours of duty in wartime.

19.  The applicant provides three statements of medical treatment, dated between March and July 2010, which state he received treatment for post-traumatic stress disorder (PTSD) and he meets the diagnostic criteria for bipolar II disorder and PTSD.

20.  Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, stated that a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated the date the wound or injury occurred would also be placed in item 40.

21.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify 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.

22.  Army Regulation 600-8-22 states the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

23.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel and established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and desertion.  A discharge under conditions other than honorable was normally appropriate for a Soldier discharged under this regulation.

24.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

25.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on two occasions for breaking restriction and disobeying a lawful order.  In addition, he was AWOL and was apprehended after 610 days of being AWOL.  Accordingly, his immediate commander initiated separation action against him.  He was also in an AWOL status at the time of his discharge on 29 March 1972.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  Therefore, he is not entitled to an honorable or a general discharge.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  With respect to the Purple Heart or multiple Purple Hearts, his record does not show he served in Vietnam.  His record does not contain any evidence that indicates he sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record.  Therefore, there is insufficient evidence to correct his records to show award of the Purple Heart.

5.  With respect to the Silver Star, there is no evidence in the available records that shows he was awarded the Silver Star.  The governing Army regulation states that for personal decorations (which include the Silver Star), formal recommendations, approval through the chain of command, and announcement in orders are required.  In the absence of orders, there is insufficient evidence to correct his records to show the Silver Star.

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 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)                                         AR20100025789



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ABCMR Record of Proceedings (cont)                                         AR20100025789



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