BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110022693 


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.  He further requests correction of his reissued DD Form 214 (Report of Separation from Active Duty) to show the Combat Infantryman Badge (CIB), and removal of the Separation Program Number (SPN).

2.  The applicant states his discharge was not the result of a court-martial and he was suffering from posttraumatic stress disorder (PTSD) at the time.  He states the SPN codes are not used anymore.  He further states the CIB was on page 21 of the Form OSA 172 (Discharge Review).

3.  The applicant provides no documentation to substantiate his requests.

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 enlisted in the Regular Army on 27 February 1968 for a period of 3 years.  He completed training and he was awarded military occupational specialty 67A (aircraft maintenance).

3.  His DA Form 20 (Enlisted Qualification Record) shows:

* he served in Vietnam with the 229th Aviation Battalion, 3rd Brigade,
1st Cavalry Division from 26 December 1970 through 5 November 1971
* he was reassigned to the U.S. Army Correctional Holding Detachment in Vietnam from 6 November through 20 December 1971 in a prisoner status
* he was reassigned to the U.S. Army Correctional Training Facility, Fort Riley, KS on 21 December 1971 in a confinement/trainee status
* he was awarded the National Defense Service Medal, Vietnam Service Medal, Air Medal, Aircraft Crewman Badge, and one overseas service bar

4.  General Orders Number 75, issued by Headquarters, 1st Cavalry Division, dated 16 March 1971, awarded the applicant (and other Soldiers) the Aircraft Crewman Badge.  These orders also awarded the CIB to a list of Soldiers, not including the applicant.

5.  The specific facts and circumstances leading to the applicant's discharge are not available for review.  However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows on
20 January 1972, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) with an undesirable discharge, in the rank/grade of private (PV1)/
E-1.  He was assigned an SPN code of 28B (Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.)  He had 669 days of time lost.  His DD Form 214 does not show award of the CIB.

6.  On 8 December 1976, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge so he could reenter military service.  He stated he initially requested discharge under the assumption he would receive a general discharge; however, he received an undesirable discharge instead.

7.  The ADRB's Proceedings are not contained in the available records.  However, the applicant's record contains a reissued DD Form 214 that shows he was discharged under honorable conditions and issued a General Discharge Certificate.  It further shows in the Remarks section the entry "Upgraded under 


the DoD Discharge Review Program (Special) (SDRP), date applied for discharge upgrade:  4 April 1977; Date discharge was upgraded:  31 May 1977; Character of service prior to upgrade:  under other than honorable conditions."  The reissued DD Form 214 further shows in Item 9c (Authority and Reason) the entry "Army Regulation 635-200, SPN 28B, DoD Discharge Review Program (Special), Special Program Designator (SPD) KCR."

8.  Presently, the OSA Form 172 is a computerized format used to report ADRB board proceedings.  The OSA Form 172 pertaining to the applicant's petition to the ADRB is not in the available records.  The present OSA Form 172 consists of considerably less pages than that during the applicant's ADRB processing.  Without the applicant's OSA Form 172 it cannot be determined what information was contained on page 21.

9.  Army Regulation 600-8-22 (Military Awards) states the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have 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.  Additionally, Appendix V of U.S. Army Vietnam (USARV) Regulation 672-1 states that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

10.  Army Regulation 635-200 currently in effect, governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge 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.

11.  Army Regulation 635-5-1 (SPD Codes) states that the purpose of the regulation prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the separation program designator codes to be entered on DD Form 214.  SPD KCR meant the reason for separation was under the SDRP.

12.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be 


entered on the DD Form 214.  At the time of the applicant's separation, it stated that the SPN code of 28B was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-212, by reason of unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record and the applicant did not provide any evidence that shows he was ever recommended for or awarded the CIB.  In addition, the CIB is awarded to enlisted Soldiers who have an infantry MOS and they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  The applicant held a non-infantry MOS throughout his service and he was assigned to an aviation battalion during his service in Vietnam.  Therefore, there is an insufficient evidentiary basis for granting this portion of his request.

2.  His record is void of the complete facts and circumstances that led to his discharge other than the fact that he accrued 669 days of time lost during his period of active service.  There is no evidence of record and he has not provided any evidence that shows he was not initially properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process.

3.  Although the applicant's discharge was upgraded to a general discharge under the SDRP, there is no evidence of record and the applicant did not provide any argument or evidence to warrant further upgrade of his discharge.  Based on his overall record of service, he clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  Additionally, the ABCMR does not upgrade discharges based solely on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  Regarding the removal of SPN 28B from his reissued DD Form 214, although his discharge was upgraded under the SDRP, the original reason for his discharge was still valid.  Although SPD's subsequently replaced SPNs, there is no provision of regulation excluding the original authority and reason from being identified on the DD Form 214.  Therefore, there is no basis for granting this portion of the applicant's requested relief.


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)                                         AR20110022693



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ABCMR Record of Proceedings (cont)                                         AR20110022693



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