IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110023723 


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 an upgrade of his undesirable discharge (UD) to an honorable discharge (HD) and all awards to which he may be authorized.

2.  The applicant states:

	a.  he had post-traumatic stress disorder (PTSD) from which he still suffers today;

	b.  he was exposed to Agent Orange;

	c.  although he would love to serve with the men and women today, his condition will not allow him;

	d.  he would like all medals and ribbons to which he may be entitled; and

	e.  he desires the opportunity to appear before the Board.

3.  The applicant provides a self-authored statement.

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 record shows he enlisted in the Regular Army (RA) on 19 January 1968.  He was trained in and awarded military occupational specialty 11B (Light Weapon Infantryman).

3.  The applicant's official military personnel file (OMPF) includes Headquarters, Second Regional Assistance Command, Orders Number 97, dated 14 May 1968 announcing his award of the Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60).

4.  His DA Form 20 (Enlisted Qualification Record) shows he received "good" conduct and efficiency ratings during the period 13 June through 9 October 1968. 
It also shows he was promoted to specialist four (SP4/E-4), the highest rank he attained.

5.  On 15 January 1970, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve (USAR).  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at that time shows he completed 1 year, 11 months, and 27 days of creditable active service and earned the following awards:

* National Defense Service Medal (NDSM)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)

6.  On 4 May 1971, the applicant again enlisted in the RA.

7.  The applicant's OMPF includes Headquarters, Second Regional Assistance Command, Orders Number 93, dated 1 August 1972 announcing his award of the Army Commendation Medal (ARCOM) for meritorious service in the Republic of Vietnam (RVN) for the period 3 November 1971 to 31 July 1972.

8.  A subsequent DA Form 20 prepared during his last period of active duty service includes the following entries:

	a.  Item 31 (Foreign Service) shows he served in the RVN from 4 November 1971 through 27 June 1972,

	b.  Item 41 (Awards and Decorations) shows he was awarded or authorized the:

* NDSM
* Vietnam Service Medal (VSM)
* RVN Campaign Medal with Device (1960)
* ARCOM
* Expert Marksmanship Qualification Badge with Rifle Bar

	c.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Expiration of Term of Service) shows:

FROM
TO
DAYS
REASON
720904
720916
3
absent without leave (AWOL)
721003
721111
40
AWOL
721202
721230
29
AWOL
730123
730301
38
imprisonment
730326


AWOL
9.  The applicant's OMPF is void of a separation packet containing the specific facts and circumstances surrounding his separation processing for this period of service.  However, the record does contain a properly-constituted DD Form 214 that shows he was discharged for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

10.  The applicant's DD Form 214 for the period 4 May 1971-27 August 1973 also shows he was discharged on 27 August 1973 after completing 1 year, 11 months, and 10 days of creditable active military service with 136 days of lost time.  It confirms he received a UD.

11.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 contains the entry "None."

12.  The applicant's record contains no documents to show he was ever diagnosed with PTSD or any other medical condition that would have warranted his separation through medical channels during his service on active duty.

13.  After having carefully reviewed the applicant's record and the issues he presented on an unknown date, the Army Discharge Review Board concluded the applicant's discharge was proper and equitable and voted to deny his request for an upgrade.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an HD or a general discharge (GD) is authorized, an UD Certificate would normally be furnished to an individual who was discharged for the good of the service.

	a.  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.

	b.  Paragraph 3-7b provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an HD.

15.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows that based on the applicant's dates of service in the RVN, he participated in the following three campaigns:  Consolidation I, Consolidation II, and Vietnam Cease-Fire.  This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

16.  Department of the Army General Orders Number 8, dated 1974, authorized the award of the RVN Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation under which this Board operates, states that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UD should be upgraded to an HD and his record should be corrected to show all awards to which he is authorized.  There is sufficient evidence to support granting a portion of the requested relief in this case.

2.  The evidence of record confirms the applicant was awarded the ARCOM.  Official orders on file and an entry included on his DA Form 20 also confirm he qualified as "Expert" with the machine gun and rifle.  Therefore, his final DD Form 214 issued on 27 August 1973 should be corrected to reflect this award and these weapons qualifications.

3.  His DA Form 20 confirms he was authorized the NDSM, VSM, RVN Campaign Medal with Device (1960), and one overseas service bar which are not documented on his final DD Form 214.  Therefore, it would be appropriate to add these awards to this document.

4.  Further, based on his RVN service and campaign participation, he is entitled to the RVN Gallantry Cross with Palm Unit Citation and three bronze service stars to be affixed to his already-awarded VSM.  Accordingly, these awards should be added to his final DD Form 214.

5.  The record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  The applicant indicated he would like to personally appear before this Board.  However, there is sufficient evidence available for a fair and impartial consideration of his case.  Therefore, a personal appearance is not required.

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 adding the following awards to his final DD Form 214:

* ARCOM
* NDSM
* VSM with three bronze service stars
* RVN Campaign Medal with Device (1960)
* RVN Gallantry Cross with Palm Unit Citation
* Expert Marksmanship Qualification Badge with Machine Gun and Rifle Bars

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 an upgrade of the applicant's discharge and his personal appearance before this Board.  



      ____________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)                                         AR20110023723



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ABCMR Record of Proceedings (cont)                                         AR20110023723



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