BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100027476


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 undesirable discharge (UD) be upgraded.

2.  The applicant states he enlisted in the Regular Army and was sent to Vietnam after training.  He was a good Soldier through his Vietnam tour of duty.  When he got back home, he went through troubling times.  His father passed away and his girlfriend had a baby.  With his Vietnam experience, his father's death, and his own fatherhood, he had trouble adjusting to stateside duty.  He went absent without leave (AWOL) on several occasions to see his girlfriend and son.

3.  The applicant adds he married his girlfriend and they are still married today.  He and his wife have two sons and two grandchildren.  He made poor choices after returning from Vietnam and he has lived with it for 40 years.

4.  The applicant provides no additional documentation.

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 was born on 29 June 1951 and enlisted in the Regular Army for 3 years on 27 February 1969; he was 17 years (and 8 months) old.  He enlisted under the "Buddy Basic Training Plan" and for airborne training.

3.  The applicant's records are somewhat incomplete; however, his DA Form 20 (Enlisted Qualification Record) shows:

* Basic Combat Training at Fort Campbell, KY and award of the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar
* Advanced Individual Training at Fort Polk, LA
* Awarded military occupational specialty (MOS) 76A1O (Supply Clerk)
* Basic Airborne Course, Fort Benning, GA
* Awarded Parachutist Badge and MOS 76A1P (for Parachutist)
* Arrived in Vietnam on 2 November 1969
* Assigned to Company A, 168th Combat Engineer Battalion, Vietnam, to perform duties in MOS 12A (Pioneer Engineer)
* He was reassigned to 60th Engineer Company, Vietnam, to perform duties in MOS 62E (Crawler Tractor Operator)
* He was wounded in action on 18 June 1970
* Temporary promotion to Specialist 5 (SP5/E-5) on 15 July 1970
* Departed Vietnam on 24 August 1970 en-route to Fort Benning, GA
* Awarded Vietnam Service Medal, Vietnam Campaign Medal with Device (1960), Overseas Service Bar (1)
* "Excellent" conduct and efficiency ratings through 21 May 1971, a period of 2 years, 2 months, and 25 days

4.  A memorandum to "whom it may concern," from the Commanding Officer, Company A, 168th Combat Engineer Battalion, dated 8 February 1970, recommended the applicant for award of the Army Commendation Medal for meritorious service.  

5.  A memorandum through the Commanding Officer, 62nd Engineer Battalion, to the Commanding Officer, 79th Engineer Group, from the Commanding Officer, 60th Engineer Company requests the applicant be awarded the Purple Heart for 
wounds received on 18 June 1970 when a rocket-propelled grenade (RPG) was fired at, and exploded on his D7E tractor dozer.  An endorsement by a Medical Corps officer confirms treatment for shrapnel wounds to the applicant's neck, upper, and lower, extremities.
6.  The applicant's name appears on the Vietnam Casualty Roster as having been wounded on 18 June 1970.

7.  The applicant's records show on 17 December 1969, while in Vietnam, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).  He was punished for being asleep on bunker duty.  He was fined $28 and made to perform 7 days of extra duty.

8.  The records show a marked deterioration in the applicant's service 7 months after his return to the United States from his Vietnam tour.  During this time, he received three NJPs for:

	a.  making a false official statement regarding going on sick call and then failing to be at his appointed place of duty on 2 April 1971, for which he was reduced to private first class/E-3 and given 14 days of restriction and extra duty;

	b.  failing to go at the time prescribed to his appointed place of duty 
from 17-18 April 1971, for which he received 14 days of restriction and extra duty; and 

	c.  being absent from his place of duty on 17 May 1971, for which he was reduced to Private/E-2.

9.  The applicant's DA Form 20 also shows he also had three periods of AWOL totaling 48 days, and one period of confinement for 50 days.

10.  The applicant's administrative separation packet is not in his records; however, his records do show he was given a UD on 11 November 1971 for unfitness under the provisions of Army Regulation 635-212 (Discharge – Unfitness and Unsuitability).

11.  Copy #2 of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) is contained in his official records, but it is torn in the upper right corner.  It shows:

* Character of service is under conditions other than honorable (UD)
* Reason and authority paragraph 14e, Army Regulation 635-212 (unfitness)
* Creditable service of 2 years, 4 months, and 8 days, of which 10 months was Vietnam service over three named campaigns
* Total of 98 days of lost time (due to being AWOL and in confinement)
* No awards or decorations

12.  On 23 June 1976, the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  On 8 December 1976, the ADRB notified the applicant his records contained insufficient evidence upon which to render a decision.  The applicant's request was returned without action being taken.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  The regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate, "except that an honorable or general discharge (GD) may be awarded if the individual being discharged has been awarded a personal decoration…."

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.

	b.  Paragraph 3-7b states that a GD 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

15.  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.  

16.  Army Regulation 600-8-22 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.

17.  Army Regulation 600-8-22 (Military Awards) states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each credited campaign.  The applicant participated in three campaigns.

18.  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.  

19.  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 units to which the applicant was assigned were cited for award of:

* the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 26 May 1970 to 23 June 1970 by Department of the Army General Order Number 55, dated 1971
* the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 3 August 1967 to 9 February 1970 by Department of the Army General Order Number 43, dated 1970
* the Meritorious Unit Commendation for the period 1 July 1969 to 28 February 1970 by Department of the Army General Order Number 51, dated 1971

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade.

2.  The applicant was a 17-year old youth when he enlisted in the Regular Army for 3 years.  He was just over 18 years old when he arrived in Vietnam.  Although he was trained as a supply clerk, military necessity required that he serve as a pioneer (combat) engineer.

3.  The applicant performed his new duties in an exemplary manner, receiving "excellent" conduct and efficiency ratings and being promoted to the rank of temporary SP5.  While operating a D7E tractor dozer, he was wounded by an RPG round and treated for those wounds.  Although the wounding was recorded on his DA Form 20 and his company commander requested he be awarded the Purple Heart, the applicant never received the decoration and it's not shown on his DD Form 214.

4.  The applicant was also endorsed by his company commander for award of the Army Commendation Medal for his meritorious service in Vietnam.  The endorsement memorandum is in the applicant's records, but there is no indication it was acted upon or approved.

5.  Although not verified in the applicant's records, he states his troubles began upon returning from Vietnam.  His father passed away and his then girlfriend (now his wife of more than 40 years) gave birth to his son.  He went AWOL a couple of times to be with his wife and son.  The records show he had three periods of AWOL totaling 48 days.

6.  The applicant was processed for an administrative separation for unfitness under the provisions of Army Regulation 635-212.  His misconduct would have warranted such a separation and based on his incomplete service records, would have properly resulted in a UD.  However, the separation authority was unaware the applicant should have been awarded the Purple Heart which is a personal decoration.  This would have permitted consideration of an HD or a GD.

7.  Given the applicant's outstanding record of service from February 1969 through March 1971 and his entitlement to a Purple Heart, the applicant should have at least been considered for a discharge under honorable conditions; there is no proof this ever occurred.  He never received the Purple Heart to which he was entitled, because he was not afforded consideration for a GD, and because he has had to live so long with the stigma of a UD for relatively minor misconduct, it would be equitable and just to correct his records by awarding his long-overdue Purple Heart and upgrading his discharge to a GD.

8.  The applicant is also entitled to other awards which do not appear on his DD Form 214.  His DD Form 214 should be corrected to show:

* the National Defense Service Medal
* the Vietnam Service Medal with 3 bronze service stars
* the Republic of Vietnam Campaign Medal with Device (1960)


* the Meritorious Unit Commendation
* the Republic of Vietnam Gallantry Cross with Palm Unit Citation
* the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* awarding him the Purple Heart for wounds received on 18 June 1970
* upgrading his character of service to under honorable conditions (general) by reason of Secretarial Authority
* issuing him a new DD Form 214 showing his GD and the Purple Heart, National Defense Service Medal, Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation



      _______ _  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)                                         AR20100027476



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ABCMR Record of Proceedings (cont)                                         AR20100027476



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