IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110023781 


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 reconsideration of his earlier request for an upgrade of his discharge.  As a new issue, he requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the:

* Purple Heart
* Combat Infantryman Badge
* Any other Vietnam-related awards and decorations

2.  The applicant states:

* His DD Form 214 does not show the Combat Infantryman Badge, the Purple Heart, or any other medals
* He received two DD Forms 214, the first was honorable but the second was not
* Before he reenlisted, he was wounded with a traumatic brain injury (TBI) and he believes he has post-traumatic stress disorder (PTSD)
* He believes his TBI and PTSD were caused by his service in Vietnam
* His second term of service was affected by his TBI and PTSD; his judgment was impaired greatly by his injury

3.  The applicant did not provide any additional evidence. 



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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC88-06610, dated 10 May 1989.

3.  The applicant submits a new argument with regard to his character of service. Although he does not meet the two-tiered standard for reconsideration in that his request is more than 1 year after the Board's original decision and he failed to provide any new substantial evidence, the new argument is considered new evidence and will be considered by the Board as an exception to policy.

4.  He enlisted in the Regular Army (RA) on 4 October 1968.  He completed basic combat and advanced individual training and he was awarded military educational specialty 11B (Light Weapons Infantryman).  

5.  He served in Vietnam from on or about 22 June 1969 to on or about 23 June 1970.  He was assigned as follows:

* From 5 July to 8 November 1969, team leader, 2nd Battalion, 8th Infantry, 4th Infantry Division
* From 9 November 1969 to 23 June 1970, security guard, U.S. Army Depot, Long Binh

6.  While in Vietnam, he was honorably discharged on 29 September 1969 for the purpose of immediate reenlistment.  His DD Form 214 shows he completed 11 months and 25 days of active service.  This form also shows he was awarded or authorized the National Defense Service Medal and Vietnam Service Medal.

7.  He executed a 3-year reenlistment on 30 September 1969, while in Vietnam.  
8.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 29 January 1970, failing to go at the time prescribed to his appointed place of duty
* 16 April 1970, violating a lawful general regulation

9.  On 29 May 1970, consistent with his guilty pleas, he was convicted by a special court-martial of one specification of assaulting a sergeant and one specification of communicating a threat to a sergeant.  The Court sentenced him to a reduction to the lowest enlisted grade and one month of extra duty and restriction.  The convening authority approved his sentence.
8.  He was reassigned to Fort Meade, MD, and assigned to the 2nd Squadron, 6th Armored Cavalry Regiment.

10.  On 4 September 1970, he departed his unit in an absent without leave (AWOL) status and on 5 October 1970, he was dropped from the Army rolls as a deserter.  He ultimately returned to military control on or about 16 March 1971. 

11.  On 17 March 1971, his command preferred court-martial charges against him for one specification of AWOL from 4 September 1970 to 16 March 1971. 

12.  On 17 March 1971, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge 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.

13.  In his request for discharge he indicated or understood:

* he was making the request of his own free will and he had not been subjected to any coercion by anyone
* he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he understood that if such discharge were approved, he could be deprived of many or all Army benefits
* he understood he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws

14.  On 27 April 1971, subsequent to a legal review by a military attorney, the separation authority (a major general) approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed the issuance of an Undesirable Discharge Certificate and reduction to private/E-1.

15.  He was accordingly discharged on 12 May 1971.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of trial by court-martial with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate. This form confirms he completed 1 year and 29 days of active service during this period and he had 196 days of lost time.  This form also shows he was awarded or authorized the National Defense Service Medal. 

16.  On 29 January 1976, the Army Discharge Review Board denied his petition for an upgrade of his discharge, and on 10 May 1989, the ABCMR did the same. 

17.  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 provided that 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 that 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 Veterans Administration 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.

	a.  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.

	b.  Paragraph 3-7b provides that a general discharge 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 honorable discharge.  

18.  According to the Manual of Court-Martial, the maximum punishment for violating Article 86 of the UCMJ – being AWOL for more than 30 days – is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.

19.  Nothing in six typical documents/sources shows he was wounded as a result of hostile action or was awarded the Purple Heart or the Combat Infantryman Badge:

* His name is not on the Vietnam casualty roster
* Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show award of the Purple Heart
* Item 41 (Awards and Decorations) of his DA Form 20 does not show the Purple Heart or the Combat Infantryman Badge
* His available medical records do not show he was wounded in action or received treatment for a wound
* His service records do not contain orders awarding him the Purple Heart or the Combat Infantryman Badge
* A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him

20.  Army Regulation 600-8-22 (Military Awards) provides for the following awards:

	a.  The Purple Heart is awarded for a wound sustained while in action against and enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  

	b.  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.  

21.  U.S. Army Vietnam Regulation Number 672-1 specifically governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman and the Combat Infantryman Badge is the unique award established to recognize the infantryman and only the infantryman for his service. Further, "the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day to day combat."  This regulation also stated the Combat Infantryman Badge  was authorized for award to infantry officers and to enlisted and warrant officer persons who have an infantry MOS and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

22.  Item 41 of his DA Form 20 shows he was awarded the Republic of Vietnam Campaign Medal with "1960" Device, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the National Defense Service Medal.

23.  Department of the Army (DA) Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during his period of service in Vietnam with the 2nd Battalion, 8th Infantry, his unit was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, for service from     12 July 1965 to 7 April 1970, based on DA General Orders Number 53, dated 1970.

24.  DA General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

25.  Appendix B of Army Regulation 600-8-22 shows that during his service in Vietnam campaign participation credit was awarded for the below campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  

* Tet 69/Counteroffensive 23 February - 8 June 1969
* Vietnam Summer - Fall 1969 9 June - 31 October 1969
* Vietnam Winter - Spring 1970 1 November 1969 - 30 April 1970

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was awarded or authorized the Republic of Vietnam Campaign Medal with "1960" Device and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar; however, neither is shown on his DD Form 214 for the period ending 12 May 1971.  Therefore, he is entitled to correction of this form to show both awards. 
2.  General orders awarded his unit of assignment in Vietnam the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his records; therefore, he is entitled to correction of his records to show these unit awards.

3.  The evidence of record shows he was awarded the Vietnam Service Medal.  Additionally, he participated in three campaigns while serving in Vietnam; therefore, he is entitled to correction of his DD Form 214 to show the Vietnam Service Medal with three bronze service stars. 

4.  With respect to the discharge upgrade: 

	a.  He was charged with the commission of an offense punishable under the UCMJ 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

	b.  The applicant's service in Vietnam is noted.  The circumstances at the time, including the conditions of the war, have also been noted.  However, unlike the thousands of Vietnam service members who may have experienced similar circumstances but served honorably and completed their military service, the applicant chose to go AWOL. 

	c.  The applicant chose to go AWOL.  When court-martial charges were preferred against him, he could have elected trial by a court-martial if he felt he was innocent of the charges or if he felt he had any medical conditions that caused him to go AWOL; but, again he chose a voluntary discharge.  

	d.  The honorable character of service 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 and the under honorable conditions (general) characterization is appropriate to those member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The applicant's military service was marred with misconduct.

	e.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.
5.  With respect to listing the Combat Infantryman Badge on his DD Form 214:

	a.  The applicant's infantry MOS and/or his service in Vietnam are not in question.  However, there is no evidence in the available records and he did not submit substantiating evidence that shows he was awarded the Combat Infantryman Badge or that he was an active participant in ground combat while assigned to an infantry unit.

	b.  In the absence of official orders or other documentary evidence that conclusively shows he served with an infantry unit and actively participated in ground combat while assigned to an infantry unit, there is insufficient evidence upon which to base correcting his records to show this award. 

6.  With respect to listing the Purple Heart on his DD Form 214:

	a.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

	b.  The applicant's service record is void of any orders that show he was awarded the Purple Heart or that he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty roster.  His service medical records are not available for review with this case.  The available medical documents do not show he sustained any injury/wound caused by enemy fire or as a result of hostile action. 

	c.  In the absence of documentation that shows he was wounded or injured as a result of enemy action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented was sufficient to warrant a recommendation for partial relief.

2.  In regard to the new issues, 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 adding to his DD Form 214 for the period ending 12 May 1971 the:

* Vietnam Service Medal with three bronze service stars
* Republic of Vietnam Campaign Medal with "1960" Device
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief in regard to the new issues.  As a result, the Board recommends denial of so much of the application that pertains to adding to his DD Form 214 the Purple Heart and/or the Combat Infantryman Badge.

4.  In regard to the request for reconsideration, 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 to amend the decision of the ABCMR set forth in Docket Number AC88-06610, dated 10 May 1989.




      _______ _   _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)                                         AR20110023781



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ABCMR Record of Proceedings (cont)                                         AR20110023781



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