BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110003063 


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 general discharge to an honorable discharge
* Award of the Combat Infantryman Badge (CIB) and Purple Heart (PH)

2.  He states he believes the record to be unjust based on the findings that led to his general discharge, which proves the court-martial finding was in error.  He was under medical restrictions.  His rank should have been restored; he should have been reimbursed lost pay, compensated for illegal incarceration, and given an honorable discharge.  

3.  He provided no additional evidence.

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 military records show he was inducted into the Army of the United States on 17 September 1969.  He was honorably discharged on 22 September 1969 for the purpose of immediate enlistment.  He enlisted in the Regular Army on 23 September 1969.  He completed training and was awarded military occupational specialty (MOS) 72B, Communications Center Specialist.  He served in Vietnam from 7 April 1970 through 6 October 1971.  He was assigned to the 506th General Supply Company and performed duties as a teletype operator.

3.  On 10 November 1970, he accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty on 5 November 1970.  

4.  On 1 April 1971, he was convicted by a special court-martial of one specification each of missing movement with his company and willfully disobeying a lawful command from his commissioned officer.  He was sentenced to a bad conduct discharge (BCD), confinement at hard labor for 4 months, a forfeiture of $60.00 pay for 4 months, and a reduction to pay grade E-1.

5.  On 18 July 1972, the U.S. Army Court of Military Review approved the findings of guilty and affirmed the sentence.

6.  On 27 October 1972, the convening authority ordered the BCD duly executed.

7.  Accordingly, he was discharged in pay grade E-1 on 1 March 1973, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a special court-martial.  He was credited with completion of 3 years, 2 months, and 1 day of net active service and 97 days of time lost.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not list the CIB or PH.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) does not show award of the CIB or PH.

9.  There is no evidence in his records that shows he participated in active ground combat or was wounded in action during his period of service in Vietnam. There are no orders in his records awarding him the CIB or PH.


10.  On 3 April 1973, the Under Secretary of the Army ordered a general discharge be substituted for the BCD that was executed and the issuance of a General Discharge Certificate.  The complete facts and circumstances of the upgrade are not available for review with this case.  

11.  On 6 August 1973, he was issued a General Discharge Certificate and new DD Form 214.

12.  His name is not listed on the Vietnam casualty list.

13.  A 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 orders for the CIB or PH pertaining to the applicant.

14.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11 specified a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before the bad conduct discharge could be duly executed.

15.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

16.  Army Regulation 600-8-22 (Military Awards) states there are basically three requirements for award of the CIB.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  

17.  U.S. Army Vietnam Regulation 672-1 (Awards) governed award of the CIB to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the CIB identified the man who trained, lived, and fought as an infantryman and the CIB is the unique award established to recognize the infantryman and only the infantryman for his service.  Further, "the CIB is not an award for being shot at or for undergoing the hazards of day-to-day combat."


18.  Army Regulation 600-8-22 also states the PH is awarded for an injury or wound sustained 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.

DISCUSSION AND CONCLUSIONS:

1.  With regard to the applicant’s request for an upgrade his general discharge, the evidence of record shows he was convicted by a special court-martial for missing movement with his company and willfully disobeying a lawful command.  He was subsequently discharged pursuant to the sentence of the court-martial and he was issued a BCD after his sentence was affirmed.  

2.  In April 1973, his BCD was upgraded to a general discharge by order of the Under Secretary of the Army.  He was issued a General Discharge Certificate and a new DD Form 214.  His record is void of the facts and circumstances which led to this upgrade.

3.  Based on the available evidence, there is no basis for upgrading his general discharge to a fully honorable discharge.  He has submitted neither probative evidence nor a convincing argument that he should not have been separated due to misconduct.  He provides no evidence that the findings of the court-martial were overturned.  It is presumed his general discharge accurately reflects his overall record of service.  He has provided no information that would indicate the contrary.  

4.  With regard to award of the CIB, the evidence of record shows he completed training, was awarded, and served in MOS 72B throughout his military service and during his service in Vietnam.  There is no evidence he was awarded and/or served in an infantry MOS during his period in Vietnam or military service.  While serving in Vietnam, he was primarily assigned to a general support company and performed duties of a teletype operator.  

5.  The CIB is not automatically awarded to a Soldier for being shot at or for undergoing the hazards of day-to-day combat.  Therefore, absent sufficient evidence as required by the governing regulation he is not entitled to the CIB.

6.  With regard to award of the PH, by regulation, in order to support award of the PH there must be evidence confirming the wound/injury for which the award is being 

made was received as a direct result of or was caused by enemy action, the wound/injury must have been treated by medical personnel, and a record of this treatment must have been made a matter of official record.

7.  He has provided no evidence and there is no evidence in his record to show he was wounded or injured as a result of hostile action during his period of service in Vietnam.  His name does not appear on the Vietnam casualty listing.

8.  Absent corroborating evidence confirming his contention (such as his service medical records, which he should be able to obtain from the Department of Veterans Affairs), the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, he is not entitled to award of the PH.

9.  In view of the foregoing, there is no basis for granting his requests.

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 that 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)                                         AR20110003063



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ABCMR Record of Proceedings (cont)                                         AR20110003063



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