IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20110012800 


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 (HD), addition of Air Medals to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and restoration to the grade of
E-5.

2.  He states for most of his Army service he was a good Soldier.  He followed orders and did what he was told.  After his first tour in Vietnam, he got married.  He reenlisted and went to Germany with his wife and infant daughter.  After 15 months, he volunteered to go back to Vietnam.  He was assigned to an air ambulance unit and flew as a medic.  After he came back [from Vietnam], he started having trouble with his wife and started going absent without leave (AWOL).  He did not know at the time it was post-traumatic stress disorder (PTSD).  It took 30 years to find out what was bothering him.  Now, with medicine he can handle it.  Even though his general discharge was under honorable conditions and he kept his rights as a veteran, he has always been ashamed.  He loved the Army and feels that if he had not had PTSD he would not have gone AWOL.

3.  He provides:

* three DD Forms 214
* Department of Veterans Affairs (VA) Rating Decision
* three pages of his DA Form 20 (Enlisted Qualification Record)
* an Air Medal Certificate (2nd through 12th Awards)


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 served honorably in the Tennessee Army National Guard (ARNG) from 7 November 1964 to 26 December 1965 and in the Florida ARNG from 27 December 1965 to 2 July 1966.

3.  On 1 February 1967, he enlisted in the Regular Army (RA) for a period of
3 years.  On 1 July 1969, he was honorably discharged for the purpose of immediate reenlistment.  On 2 July 1969, he reenlisted for a period of 6 years.

4.  His DA Form 20 shows in:

* item 31 (Foreign Service) he was credited with service in Vietnam from 7 October 1967 to 6 October 1968 and from 9 February 1971 to 21 January 1972
* item 33 (Appointments and Reductions) he was promoted to specialist five (SP5)/E-5 on 20 February 1969 and reduced to private (PV1)/E-1 on 16 January 1973 by order of a special court-martial
* item 38 (Record of Assignments) he was assigned for duty in Vietnam with:

* 51st Medical Company (Airmobile) from 11 October 1967 to 30 September 1968
* Headquarters and Headquarters Detachment, 61st Medical Battalion, on 19 February 1971
* 236th Medical Detachment from 20 February 1971 to 21 January 1972


* item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date [Expiration Term of Service]) the following:

FROM
TO
REASON
7 May 1972
8 June 1972
Dropped from the Rolls (DFR)
9 June 1972
9 July 1972
AWOL
10 July 1972
7 August 1972
Confined
14 August 1972
24 October 1972
AWOL
26 October 1972
26 November 1972
Confined
20 February 1973
22 June 1973
AWOL
26 June 1973
Unspecified Date
Confined
5.  Headquarters, U.S. Army Vietnam, issued:

	a.  General Orders Number 1759, dated 22 May 1971, awarding the applicant the Air Medal for meritorious achievement while participating in aerial flight in Vietnam from 28 February to 22 April 1971.

	b.  General Orders Number 548, dated 13 March 1972, awarding him the Air Medal (2nd through 12th Awards) for meritorious achievement while participating in aerial flight in Vietnam from 1 April 1971 to 10 January 1972.

6.  Special Court-Martial Order Number 22, issued by Headquarters Command, Fort Campbell, KY, dated 16 January 1973, shows he was found guilty of being AWOL from 14 August to 25 October 1972.  He was sentenced to hard labor without confinement for 2 months, forfeiture of $100.00 pay per month for
2 months, and reduction to PV1.  The sentence was approved and ordered to be executed.

7.  On 5 July 1973, he requested 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.  Prior to submitting his request, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, the effects of his request for discharge, and the rights available to him.

8.  In his voluntary request for discharge, he indicated he understood if his request were accepted he could receive an under other than honorable conditions discharge.  He further acknowledged he understood if he received an under other than honorable conditions discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered 


by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

9.  A DA Form 2823 (Sworn Statement), dated 5 July 1973, shows his handwritten statement in which he indicated he understood that by submitting his request for discharge he would receive an undesirable discharge and lose his Veterans Administration benefits.  He continued by stating, in effect, he lost his wife and family because of the Army, he could not pay his bills, and he had no intention of returning to duty.

10.  On 1 August 1973, the separation authority approved his discharge and directed he receive a general discharge.  On 7 August 1973, he was discharged accordingly.  

11. The DD Form 214 he was issued at the time shows in:

* item 5a (Grade, Rate or Rank) the entry "PV1"
* item 5b (Pay Grade) the entry "E-1"
* item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the:

* National Defense Service Medal
* 4 Overseas Service Bars
* Vietnam Service Medal with 6 campaign stars
* Vietnam Campaign Medal with 60 Device
* Good Conduct Medal
* Aircraft Crewman Badge

* item 30 (Remarks) he had 218 days of time lost

12.  The record is void of documentation showing he was diagnosed with PTSD or any other mental condition during his Army service.

13.  The record is void of documentation showing he was promoted or considered for promotion after execution of the portion of his special court-martial sentence reducing him to PV1.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.


15.  He provides a VA Rating Decision, dated 19 February 2010, showing the VA continued his evaluation of PTSD as 100 percent (%) disabling due to his ongoing problems of total occupational and social impairment.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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 VA 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.

	b.  Paragraph 3-7a provides that an 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.

17.  A review of his record indicates he is entitled to additional decorations not shown on his DD Form 214.  

18.  Army Regulation 600-8-22 (Military Awards), paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  A silver service star will be worn in lieu of five bronze service stars.  Appendix B shows that during his service in Vietnam, the applicant participated in the following seven campaigns:

* Vietnam Counteroffensive Phase III (1 June 1967 - 29 January 1968)
* Tet Counteroffensive (30 January - 1 April 1968)
* Vietnam Counteroffensive Phase IV (2 April - 30 June 1968)
* Vietnam Counteroffensive Phase V (1 July - 1 November 1968)
* Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971)
* Consolidation I (1 July - 30 November 1971)
* Consolidation II (1 December 1971 - 29 March 1972)

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 236th Medical Detachment was cited for award of the Meritorious Unit Commendation for the period July 1970 to November 1971, by Department of the Army General Order (DAGO) Number 5, dated 1973.

20.  Department of the Army Pamphlet 672-3, paragraph 6d states that DAGO 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.

21.  Army Regulation 600-8-22 states Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The numeral 2 denotes the second award of the Air Medal.

DISCUSSION AND CONCLUSIONS:

1.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The available evidence shows the applicant was AWOL from 20 February to 22 June 1973, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the Uniform Code of Military Justice.  The record shows that, throughout the separation process, all requirements of law and regulation were met and his rights were fully protected.

2.  His record shows he was convicted of being AWOL by a special court-martial and he had 218 days of time lost due to being AWOL and confinement.  It appears the separation authority considered his service in Vietnam and, despite his significant record of indiscipline, directed he receive a general discharge 
instead of an undesirable discharge normally given to individuals who request discharge in lieu of trial by court-martial.  The evidence of record supports the separation authority's decision.  During his final term of service, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

3.  After his court-martial conviction for being AWOL he was sentenced to reduction to the grade of E-1.  The record does not show he was advanced/
promoted in grade after he was reduced.  He went AWOL again shortly after his conviction, and, as a result, there would have been no basis for advancing/
promoting him due to his continued indiscipline.  Therefore, there is no basis for restoring him to the grade of E-5.

4.  General orders awarded him the Air Medal (2nd through 12th Awards).  Therefore, he is entitled to correction of his DD Form 214 to show the Air Medal with Numeral 12.

5.  He participated in seven campaign phases during his service in Vietnam.  Therefore, he is entitled to one silver service star and two bronze service stars for wear on his already-awarded Vietnam Service Medal and correction of his
DD Form 214 to show these service stars.

6.  His unit in Vietnam was cited for award of the Meritorious Unit Commendation during his period of assignment.  Therefore, he is entitled to correction of his 
DD Form 214 to show this unit award.

7.  All units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his period of assignment in Vietnam.  Therefore, he is entitled to correction of his DD Form 214 to show this unit award.

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 24 of his DD Form 214 for the period ending 7 August 1973 the Vietnam Service Medal with 6 Campaign Stars, and

	b.  adding to item 24 of his DD Form 214 for the period ending 7 August 1973 the:

* Air Medal with Numeral 12
* Vietnam Service Medal with one silver service star and two bronze service stars
* Meritorious Unit Commendation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

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 and restoring his grade to E-5.



      ___________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)                                         AR20110012800



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ABCMR Record of Proceedings (cont)                                         AR20110012800



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