IN THE CASE OF:	  

		BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110013072 


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 his undesirable discharge (UD) be upgraded to an honorable discharge (HD) and award of the Republic of Vietnam Campaign Medal.

2.  He states he wants his records corrected to show his discharge was at the discretion of the command for the good of the Army and not for any criminal allegations.  He also states:

	a.  There was never any kind of due process in accordance with "the Uniform Code of Military Justice (UCMJ) (64 Statute 109, Title 10, U.S. Code (USC), chapter 47 [sic] Title 10, USC, chapter 47])."

	b.  The charges of entering mail into the postal services without proper authorization, possession of illegal substances, attempt to traffic controlled substances, and weapons misuse were all unfounded.

	c.  The charges were brought forth as a result of circumstantial evidence and in an effort to perpetrate racial harassment.  He was locked up for 32 days, but there was no Article 15 filed or a court-martial.

	d.  He is getting on in years and needs Department of Veterans Affairs (VA) benefits.  He served in support of combat operations and despite racism directed against him, he did his job well.

	e.  He enlisted to serve his country and had every intention of completing that enlistment.  He is respectfully requesting the review he did not get and to have justice.

3.  He provides no additional evidence in support of his application.

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 enlisted in the Regular Army in pay grade E-1 on 9 July 1968 for 3 years.  He completed training and was awarded military occupational specialty 70A (Clerk).  He was promoted to pay grade E-4 on 24 January 1970.

3.  He served in Vietnam from 24 June 1969 through 5 January 1971 during four campaigns.  He was assigned to the 101st Administration Company, 101st Airborne Division (Airmobile).

4.  On 9 February 1970, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for leaving and failing to return to his place of duty on 6 February 1970.  He was reduced to pay grade E-3 as a result.

5.  A Criminal Investigation Division report of investigation, dated 24 September 1970, disclosed that in Vietnam during May and June 1970, the applicant, a postal clerk, deposited a package containing 261.80 grams of marijuana and 50 tablets containing secobarbital, amobarbital, and barbiturates in the U.S. Mail. 
The package which was addressed by the applicant, bore a civilian return address and was addressed to the applicant using an address in Chicago, Illinois.  On 5 July 1970, the package was returned to Army Post Office 96383 [San Francisco] for proper disposition at which time the contents were discovered by the applicant's company commander.

6.  The investigator concluded that the applicant did, at Phu Bai Combat Base, Vietnam, during May or June 1970:

* wrongfully have in his possession 261.80 grams, more or less, of marijuana
* wrongfully violate a lawful general regulation by mailing a package containing prohibited items, to wit:  marijuana and dangerous drugs for delivery within the United States
* wrongfully violate a lawful general regulation by wrongfully having in his possession tablets containing barbiturates

7.  On 10 October 1970, court-martial charges were preferred against him for possession of drugs.  On 11 October 1970, the applicant's company commander forwarded the court-martial charges and recommended trial by special court-martial.

8.  On 21 November 1970, a flagging action was initiated against the applicant for the wrongful possession of marijuana.

9.  A Report of Psychiatric Evaluation, dated 30 December 1970, found the applicant to be fully oriented and a cooperative individual with normal motor behavior.  His speech was found to be coherent and his mood was neutral.  There was no evidence of a thought disorder, psychosis, or neurosis.  The evaluating doctor, a psychiatrist, diagnosed the applicant with an immature personality.  He found that the applicant met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and that there was no psychiatric disease or deflect which warranted disposition through medical channels.  The applicant was cleared for administrative or judicial action deemed appropriate by his command.  The evaluating psychiatrist recommended the applicant's administrative separation from the military under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

10.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged for the good of the service in lieu of trial by court-martial in pay grade E-1 on 6 January 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  His service was characterized as under other than honorable conditions and he was issued a UD Certificate.  He was credited with 2 years, 4 months, and 27 days of net active service and no lost time.

11.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not list the Republic of Vietnam Campaign Medal.

12.  On 15 October 1973 and 2 January 1981, the Army Discharge Review Board denied the applicant's requests for an upgrade of his discharge.

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.  A UD was normally considered appropriate for individuals separated by reason of unfitness.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 stated a member who had 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 in lieu of trial by court-martial at any time after charges had been preferred.  The separation authority could direct a general discharge if such a discharge were merited by the Soldier's overall record.  An UD was normally considered appropriate at the time.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a, states an HD is a separation with honor.  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 inappropriate.

16.  Title 10, U.S. Code, chapter 47, pertains to apprehension and restraint, NJP action, court-martial jurisdiction and composition, pre-trial and trial procedures, sentences, post-trial procedure and review of courts-martial, punitive articles, miscellaneous provisions, and the U.S. Court of Appeals for the Armed Forces provisions within the UCMJ.

17.  Army Regulation 600-8-22 (Military Awards) 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 and having contributed direct combat support to the Republic of Vietnam and Armed Forces.

18.  Army Regulation 600-8-22 also states a bronze service star is authorized based on qualifying service for each campaign listed in appendix B and authorized service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal.

19.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows his unit, the 101st Administration Company, was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 18 March 1968 to 2 May 1970 by Department the Army General Orders Number 48, dated 1971.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows while in Vietnam during May or June 1970, the applicant wrongfully had in his possession 261.80 grams, more or less, of marijuana; wrongfully violated a lawful general regulation by mailing a package containing prohibited items, to wit:  marijuana and dangerous drugs for delivery within the United States, and wrongfully violated a lawful general regulation by wrongfully having in his possession tablets containing barbiturates.

2.  Court-martial charges were preferred against him for offenses punishable under the UCMJ with a punitive discharge.  His record is void of the facts and circumstances which led to his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged in lieu of trial by a court-martial on 6 January 1971 under the provisions of chapter 10 of Army Regulation 635-200.

3.  There is no evidence of record and he provided none to show his charges were unfound or that they were not properly processed in accordance with the UCMJ.  Based on his request for discharge in lieu of trial by court-martial he was not subject to UCMJ action and a court-martial.  He was administratively discharged.

4.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required him to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during this period.

5.  There is no evidence of record and he provided none to show he was not involved in the incident at the time.  There is also no evidence of racial harassment at the time.

6.  His desire to have his UD upgraded so he can qualify for medical and/or other benefits administered by the VA for service-connected conditions is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of qualifying an applicant for medical or other benefits administered by the VA.

7.  The evidence of record shows the applicant completed a qualifying period of service for award of the Republic of Vietnam Campaign Medal with Device (1960).  Therefore, it would be appropriate to correct his records to show this award on his DD Form 214.

8.  General orders authorized his unit award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, it would be appropriate to correct his records to show this unit award on his DD Form 214.

9.  The evidence of record also shows he participated in four campaigns during his service in the Republic of Vietnam.  Therefore, he is entitled to four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

10.  In view of the foregoing, his records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 the Vietnam Service Medal from item 24 of the applicant's DD Form 214 and

	b.  adding the Vietnam Service Medal with four bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to item 24 of his DD Form 214.

2.  The Board further determined 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 UD to an HD.



      _____________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)                                         AR20110013072



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ABCMR Record of Proceedings (cont)                                         AR20110013072



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