BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013412 


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, that his undesirable discharge which was upgraded to general under the Special Discharge Review Program (SDRP) be upgraded to honorable.  He also requests correction of his DD Form 214 (Report of Separation from Active Duty) to show award of the Combat Infantryman Badge (CIB), National Defense Service Medal (NDSM), and Vietnam Service Medal (VSM). 

2.  He states he would like to have his discharge upgraded based on his service in Vietnam and he doesn't believe his commanders reviewed his entire record in making the decision to discharge him as they did.  His undesirable discharge was upgraded to a general discharge on 1 November 1977.  He states he is a model citizen supporting current military members.

3.  He believes the awards are missing due to administrative oversight. 

4.  The applicant provides his DD Form 214 showing his discharge upgraded from an under other than honorable to a general discharge, page 4 of his DA Form 20 (Enlisted Qualification Record), and three letters of reference.

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 on 12 December 1967.  He completed training and was awarded the military occupational specialty (MOS) of light weapons infantryman.  The highest rank/grade he held was private first class/pay grade E-3.

3.  His DA Form 20 shows he performed duties as a rifleman during his tour of duty in the Republic of Vietnam (RVN) while he was assigned to Company B, 1st Battalion, 27th Infantry, 25th Infantry Division, during the period 1 June to 19 November 1968.  Item 41 (Awards and Decorations) of this form shows the NDSM and VSM which are not listed on his DD Form 214.

4.  The available records are void of any orders or other documents that indicate he was ever awarded the CIB by proper authority.

5.  Headquarters, Special Troops Special Court-Martial Order Number 363, dated 20 May 1969, shows he was convicted by special court-martial of being absent without leave (AWOL) during the period on or about 5 January to 25 March 1969.

6.  On 31 December 1970, court-martial charges were preferred against him for a subsequent period of being AWOL.  

7.  On 12 January 1971, having consulted with legal counsel, he voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service.  He acknowledged he was not subjected to coercion with respect to his request for discharge and he had been advised of the implications attached to his request.

8.  He further acknowledged he understood if his discharge request were accepted, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

9.  He chose not to submit a statement on his own behalf.  He further acknowledged he had been advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and of the effects of this request for discharge and the rights available to him.  He waived his rights in conjunction with this consultation.

10.  On 5 February 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, 
chapter 10.  He directed the applicant be issued an undesirable discharge and reduced to the lowest enlisted rank.

11.  His DD Form 214 he received shows he was discharged on 17 February 1971 under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service.  He completed 1 year, 9 months, and 20 days of total active service with 488 days of time lost.

12.  On 1 November 1977, his undesirable discharge was upgraded to a general discharge under the Department of Defense (DOD) SDRP.

13.  A DD Form 215 (Correction to DD Form 214), dated 31 July 1978, shows item 27 was corrected to read "DISCH REVIEWED UP PL 95-126 AND A DETERMINATION MADE THAT CHARACTERIZATION OF SERVICE WAS WARRANTED UP DOD SDRP 4 APR 77."

14.  On 7 August 1978, the Army Discharge Review Board (ADRB) did not affirm his 1 November 1977 upgrade from an undesirable to a general discharge. 

15.  On 20 November 1980, the ADRB denied the applicant's request to further upgrade his discharge.

16.  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 stated 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 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.

17.  Public Law 95-126, enacted on 8 October 1977, stated generally that no VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD SDRP.  It required the establishment of uniform published standards, which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases.  The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.

18.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

19.  Army Regulation 600-8-22 (Military Awards) stated the CIB was awarded to infantry officers and to enlisted and warrant officer persons who had an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

20.  Appendix B of Army Regulation 600-8-22 shows the campaigns for Vietnam.  This same regulation states a bronze service star will be awarded for wear on the VSM for participation in each campaign.  During his tour of duty in Vietnam he participated the Vietnam Counteroffensive Phase IV (2 April - 30 June 1968), Vietnam Counteroffensive Phase V (1 July - 1 November 1968), and Vietnam Counteroffensive Phase VI (2 November 1968 - 22 February 1969) campaigns.

21.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the unit he was assigned to while serving in the RVN was awarded the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by court-martial of being AWOL and had court-martial charges preferred against him for being AWOL again.  He had a total of 488 days of time lost.
2.  As a result, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  His discharge was upgraded to general (under honorable conditions) under the SDRP on 1 November 1977.  This upgrade was not affirmed under the provisions of discharge review standards established by the Department of the Army in accordance with Public Law 95-126.  

4.  The applicant's good post-service conduct and his approximately 6 months of service in Vietnam is acknowledged.  However, he has not provided evidence sufficient to mitigate the characterization of his discharge.  The records contain no indication of procedural or other errors that would have jeopardized his rights.  Therefore, he was properly and equitably discharged and he is not entitled to a further upgrade to an honorable discharge.

5.  His DA Form 20 lists the NDSM.  Therefore, he is entitled to have this medal added to his DD Form 214.

6.  His DA Form 20 shows he was awarded the VSM and he participated in three campaigns while serving in Vietnam.  Therefore, he is entitled to correction of his DD Form 214 to show his already-awarded VSM with three bronze service stars.

7.  His unit was awarded the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation during the time he was assigned to the unit.  Therefore, his DD Form 214 should be corrected to show these foreign unit awards.

8.  The applicant served in an infantry MOS in a qualifying infantry unit.  However, there is no available evidence he personally engaged in active ground combat with enemy forces.  Therefore, there is insufficient evidence to show he met the eligibility criteria for award of the CIB.

9.  In view of the foregoing, the applicant is entitled to have his records corrected as shown 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 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 adding the NDSM, VSM with three bronze service stars, RVN Gallantry Cross with Palm Unit Citation, and the RVN Civil Actions Honor Medal First Class Unit Citation to 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 general discharge and to awarding him the CIB.




      _______ _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)                                         AR20110013412



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ABCMR Record of Proceedings (cont)                                         AR20110013412



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