IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110019123 


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 the following:

* correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) ending 5 July 1967 to show award of the Purple Heart
* an upgrade of his 1975 undesirable discharge (UD)

2.  The applicant states he was awarded the Purple Heart on 17 January 1967 for combat wounds.  In effect, his 1975 UD should be upgraded because he was trying to cope with Vietnam as he had served two tours there.

3.  He provides:

* Purple Heart orders
* 1967 DD Form 214
* 1975 DD Form 214 (Report of Separation from Active Duty)
* 1967 letter from the Veterans Administration

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 29 September 1965.  He completed training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served in Vietnam from 17 April 1966 through 16 April 1967, during four campaigns.  He was assigned to Company B, 2nd Battalion, 503rd Infantry, 173rd Airborne Brigade.

3.  General Orders Number 7, issued by Headquarters, 3rd Surgical Hospital, dated 17 January 1967, awarded him the Purple Heart for wounds received in action in Vietnam on 16 January 1967.

4.  He was honorably released from active duty on 5 July 1967 and transferred to the U.S. Army Reserve Control Group (Annual Training) in pay grade E-3.  He was credited with completing 1 year, 9 months, and 7 days of net active service and no time lost.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device 1960
* Combat Infantryman Badge
* Parachutist Badge

6.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record), dated 19 April 1966, shows he received "excellent" conduct and efficiency ratings throughout his period of service.  There is no evidence of any disciplinary action during this period of active service.  There also is no evidence of a commander's disqualification for the first award of the Army Good Conduct Medal.

7.  He enlisted in the Regular Army on 25 March 1968, for 3 years, in pay grade E-2.  He served in MOS 11B.  He served in Germany from 25 April through on or about 23 November 1968.

8.  On 2 November 1968, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being drunk on sentinel duty in Germany on 2 November 1968.

9.  He again served in Vietnam from 16 April 1969 through on or about 2 April 1970.  He arrived in Germany on or about 5 June 1970.

10.  A DD Form 458 (Charge Sheet) was prepared by the Commander, Personnel Control Facility, U.S. Army Signal General and Fort Gordon, GA.  He was charged with one specification each of being absent without leave from:

* 3 July 1970 through 25 January 1971
* 6 February 1971 through 24 May 1971
* 5 June 1971 through 19 August 1975

11.  On 9 September 1975, court-martial charges were preferred against him.

12.  There is no indication he requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.  

13.  The complete facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a DD Form 214 which shows he was discharged on 22 October 1975 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, in pay grade E-1.  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He was credited with 1 year, 7 months, and 14 days of total active service and 1,904 days of time lost.

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

15.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  There must have been no convictions by a court-martial.

16.  Army Regulation 600-8-22 (Military Awards), paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Appendix B shows that during his service in Vietnam, the applicant participated in four campaigns.

17.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows his unit, 2nd Battalion, 503rd Infantry, was cited for award of the:

* Meritorious Unit Commendation for the period 5 May 1965 - 4 May 1967 by Department of Army General Orders (DAGO) Number 48, dated 1968
* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 5 May 1965 - 27 September 1970 by DAGO Number 51, dated 1971

18.  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 the charges have been preferred.  A UD was normally considered appropriate at the time.  

19.  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.

20.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  General orders awarded the applicant the Purple Heart for wounds received in action during his period of service in Vietnam.  Therefore, he is entitled to correction to his 1967 and 1975 DD Forms 214 to show this award.

2.  The evidence of record appears to show, during his first period of service, he met the criteria for the first award of the Army Good Conduct Medal and there is no evidence of record which shows he was disqualified by his commander for this award.  Therefore, he is entitled to the Army Good Conduct Medal (1st Award) for the period 29 September 1965 through 5 July 1967 and correction of his DD Form 214 to show this award.
3.  He participated in four campaigns while serving in Vietnam.  Therefore, he is entitled to four bronze service stars for wear on his already-awarded Vietnam Service Medal and correction of his DD Form 214 to show them.

4.  General orders awarded his unit the Meritorious Unit Commendation and Republic of Vietnam Gallantry Cross with Palm Unit for his period of service in Vietnam.  Therefore, it would be appropriate to correct his DD Form 214 to show these unit awards.

5.  He contends his 1975 UD should be upgraded; however, the evidence of record shows he was punished under Article 15 for misconduct and between July 1970 and August 1975 he had accumulated 1,904 days of time lost and court-martial charges were preferred.  

6.  His record is void of the facts and circumstances which led to his voluntary discharge.  However, his record contains a DD Form 214 which shows he was discharged on 22 October 1975 under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by a court-martial with an Undesirable Discharge Certificate.

7.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required him to have voluntarily, willingly, and in writing, request 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 of service.

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.  awarding the applicant the Army Good Conduct Medal (1st Award) for the period 29 September 1965 through 5 July 1967;

	b.  deleting the Vietnam Service Medal from Item 24 of his DD Form 214 ending on 5 July 1967 and deleting the Vietnam Service Medal with bronze service star from Item 26 of his DD Form 214 ending on 22 October 1975; and

	c.  adding to Item 24 of his 1967 DD Form 214 and Item 26 of his 1975 
DD Form 214 the:

* Purple Heart
* Army Good Conduct Medal (1st Award)
* Vietnam Service Medal with four 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 1975 UD to a general or a fully honorable discharge.



      _____________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)                                         AR20110019123



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ABCMR Record of Proceedings (cont)                                         AR20110019123


   
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