IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100026030 


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, in effect, upgrade of his dishonorable discharge.  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service in Vietnam and his award of the Purple Heart.

2.  He states his lawyer during his court-martial was ineffective and he did not have his best interest at heart.  He explains he was walking on post when he passed two Caucasian males who called him by a racial name and asked him where he was going.  He adds he got into a physical fight with them in which he threw the first and the last punch.  He maintains the next morning he was awakened by the military police and placed in custody.  He states he was given a court-appointed lawyer who told him to plead guilty.  He offers that he was unaware of what he was pleading guilty to and thought it was for assault.  He adds that the charge was for attempted robbery of which he was innocent.

3.  He provides:

* his DD Form 214
* a self-authored statement
* a Texas Department of Public Safety Temporary Identification Card

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 on 26 January 1965 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 94B (cook).  He was assigned to Vietnam on 20 August 1965 and he was assigned to 1st Battalion, 8th Cavalry, 1st Cavalry Division.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions on the following dates for the following offenses:

* 24 August 1965 for failing to go at the time prescribed to his appointed place of duty on 24 August 1965
* 25 April 1966 for being absent without authority from his place of duty on 23 April 1966
* 30 August 1966 for being absent without authority from his assigned ward on 24 August 1966
* 10 October 1966 for being absent without leave (AWOL) from
30 September 1966 to 9 October 1966

4.  Summary Court-Martial Order Number 1-65, issued by Headquarters,
1st Battalion, 8th Cavalry, dated 9 August 1965, shows he was found guilty of violating Article 86 of the UCMJ by being AWOL from 13 July 1965 to 28 July 1965.  He was sentenced to a reduction to private (PV1)/E-1, forfeiture of pay, and hard labor without confinement for 30 days.

5.  General Court-Martial Order Number 32, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, dated 8 March 1967, shows he was found guilty of two specifications of violating Article 80 of the UCMJ by attempting to 
steal money from two Soldiers by means of force and violence and putting fear in them and three specifications of violating Article 122 of the UCMJ by putting fear in three Soldiers and stealing money from them.  He was sentenced to confinement at hard labor for 6 years, forfeiture of $40.00 pay per month for
6 years, and a dishonorable discharge.  The sentence was adjudged on
8 February 1967.  The convening authority approved the dishonorable discharge, confinement at hard labor for 4 years, and forfeiture of $40.00 pay per month for 4 years.

6.  On 19 July 1967, the U.S. Board of Review rendered their "Opinion of the Board."  The board found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such finding of guilty and sentence were affirmed.

7.  Item 22c (Foreign and/or Sea Service) of his DD Form 214 shows he served 11 months and 8 days of foreign service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the same form shows the entry "NA" [not applicable].

8.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows on 28 July 1966, he was reassigned to the Medical Holding Company, Fitzsimons General Hospital, Denver, CO, in a patient status.  His record contains a Standard Form 539 (Abbreviated Clinical Record), dated
28 July 1966, that indicates he was diagnosed with having and being treated for malaria.

9.  Item 40 (Wounds) of his DA Form 20 is blank.

10.  Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart.  However, it does indicate he was awarded the:

* Parachutist Badge by Headquarters, U.S. Army Infantry Center, Special Orders Number 14, dated 23 June 1965
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) by Headquarters, Fort Polk, LA, Special Orders Number 62, dated 6 March 1965

11.  There is no documentation in the available record that shows he sustained wounds or he was treated for wounds incurred as a result of hostile action.

12.  There are no general orders awarding him the Purple Heart and his name is not listed on the Vietnam casualty listing.

13.  Documents associated with his court-martial and confinement indicate the applicant may have been awarded the Purple Heart.  But it appears that his statement during his sentencing was the basis for this assertion.  There are no documents in his available record that corroborates he was awarded the Purple Heart.

14.  Review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

15.  The applicant's DD Form 214 shows he was discharged on 6 November 1967 under the provisions of Army Regulation 635-204 (Personnel Separations Dishonorable and Bad Conduct Discharge) with a separation program number of 292 (other than desertion, court-martial), with issuance of a Dishonorable Discharge Certificate.  He completed 1 year, 9 months, and 16 days of total active service.

16.  Review of the applicant's DD Form 214 indicates that he is entitled to additional awards that are not shown on this form.

17.  General Orders Number 3084, issued by Headquarters, 1st Cavalry Division, dated 2 September 1965, awarded him the Air Medal for meritorious achievement while participating in aerial flight during the period 19 September 1965 to 17 July 1966.

18.  Special Orders Number 128, issued by the same headquarters, dated 
6 November 1965, awarded him the Combat Infantryman Badge.

19.  Army Regulation 600-8-22 (Military Awards) states the National Defense Service Medal 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.

20.  Army Regulation 600-8-22, 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 Defense Campaign (8 March - 24 December 1965)
* Vietnam Counteroffensive (25 December 1965 - 30 June 1966)
* Vietnam Counteroffensive Phase II (1 July 1966 - 31 May 1967)

21.  Army Regulation 600-8-22 states the Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  

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 document shows the 1st Battalion, 8th Cavalry, to which the applicant was assigned, was cited for award of the:

* Presidential Unit Citation for the period 23 October through 26 November 1965 by Department of the Army General Orders (DAGO) Number 40, dated 1967
* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period
9 August 1965 through 19 May 1969 by DAGO Number 59, dated 1969

23.  Army Regulation 600-8-22 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.
Diseases not directly caused by enemy agents do not qualify as an injury or wound for the award of the Purple Heart.

24.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214.  Section III instructed the preparer to enter in item 22c the total active duty outside continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater where service was performed, e.g., "U.S. Army, Vietnam (USARV)."

25.  Army Regulation 635-5, Change 15, dated 4 February 1972, added the following concerning foreign service.  It stated, in item 30 (Remarks), indicate Indochina and Korea service on or about 5 August 1964 by entering inclusive dates of service for Vietnam and indicating "yes" or "no" for service in Indochina and Korea, e.g., to show service in Vietnam only, enter "Vietnam - 25 April 1970 through 28 May 1971, Indochina - Yes, Korea - no."

26.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which the ABCMR acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows no basis for upgrading the applicant's dishonorable discharge.

	a.  The evidence of record shows his trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterized the misconduct for which he was convicted.

	b.  After a review of his record of service, it is clear his service did not meet the criteria for a discharge upgrade.  Therefore, there is insufficient basis to grant this portion of his request.

	c.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

2.  There are no orders in his available record and he did not provide any orders confirming he was awarded the Purple Heart.  There are no medical records available which show he was wounded or treated for wounds as a result of 
hostile action during his service in Vietnam.  Records show he was reassigned from Vietnam to the United States in a patient stats as a result of a diagnosis for malaria, which does not qualify for award of the Purple Heart.  Therefore, in the absence of medical records supporting his contention, there is an insufficient basis for award of the Purple Heart in this case.

3.  The evidence of record shows he was awarded the Parachutist Badge and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).  Therefore, he is entitled to correction of his DD Form 214 to show these badges.

4.  General orders awarded him the Air Medal.  Therefore, his DD Form 214 should be corrected to show this award.

5.  Special orders awarded him the Combat Infantryman Badge.  Therefore, his DD Form 214 should be corrected to show this award.

6.  Records show he served a qualifying period of service for the National Defense Service Medal.  Therefore, his DD Form 214 should be corrected to show this award.

7.  The evidence of record shows he served in Vietnam from 20 August 1965 to 28 July 66.  Based on his service in Vietnam during three campaign phases he is entitled to the:

* Vietnam Service Medal with three bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)

Therefore, his DD Form 214 should be corrected to show these awards.

8.  His unit in Vietnam was cited for award of the:

* Presidential Unit Citation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

Therefore, his DD Form 214 should be corrected to show these unit awards.

9.  The applicant's DD Form 214 credits him with serving 11 months and 8 days of foreign service; however, it does not show the last oversea theater where this service was performed as required by the applicable regulation.  Therefore, his DD Form 214 should be corrected to show the entry "USARV."

10.  At the time of the issuance of his DD Form 214 there was no provision for annotating the inclusive period of foreign service in item 30 of the DD Form 214.  However, a subsequent change to the regulation authorized such entry for Vietnam service.  Therefore, there would be no harm in correcting his DD Form 214 to show the inclusive period of his service in Vietnam.

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.  adding to item 22c of his DD Form 214 the entry "USARV," and

	b.  adding to item 24 of his DD Form 214 the:

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

	c.  adding to item 30 of his DD Form 214 the entry "Vietnam – 20 August 1965 through 27 July 1966, Indochina - Yes, Korea - no."

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 the upgrade of his dishonorable discharge and the award of the Purple Heart.



      ____________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)                                         AR20100026030



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ABCMR Record of Proceedings (cont)                                         AR20100026030



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