IN THE CASE OF:	   

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110024085 


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 correction of his DD Form 214 (Report of Separation from Active Duty) to show award of the Purple Heart.  He also requests an upgrade of his general discharge.

2.  The applicant states he was wounded in May 1969 while serving in the Republic of Vietnam (RVN).  He was awarded the Purple Heart, but it is not recorded on his DD Form 214.  He adds that he served honorably during his military service.

3.  The applicant provides no additional documentary evidence in support of his request.

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 was inducted into the Army of the United States on 
25 September 1968.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service):  Vietnam from 13 March 1969 through
7 April 1970;

	b.  item 33 (Appointments and Reductions):

* Private First Class (PFC), date of rank:  14 March 1969
* Private (PV1), date of rank:  2 December 1969

	c.  item 38 (Record of Assignments):  Company C, 5th Battalion,
46th Infantry, 198th Infantry Brigade, from 26 March 1969 to 7 April 1970;

4.  U.S. Army Vietnam (USARV) message, date-time-group 251442Z May 1969, reported that the applicant sustained fragment wounds to his back and left buttock, on 24 May 1969 in the RVN, when his night defensive position came under hostile mortar attack.

5.  On 2 December 1969, the applicant was convicted by a special court-martial of willfully disobeying a lawful command from a commissioned officer.  He was sentenced to confinement at hard labor for 3 months (suspended for 3 months), to forfeit $82.00 pay for 3 months, and reduction to private (E-1).  

   a.  on 22 December 1969, the applicant went absent without leave (AWOL); and

   b.  on 24 January 1970, the special court-martial authority vacated 30 days of the above suspended sentence to confinement at hard labor and ordered it executed.

6.  The applicant's commander notified the applicant of his intent to recommend him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness based on his repeated misconduct.  The applicant was also advised of his rights.

7.  The applicant consulted with legal counsel and waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also indicated he would not submit statements in his own behalf.  The applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an undesirable discharge was issued to him.  He also acknowledged he understood that he could be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of the issuance of an undesirable discharge.

8.  The immediate and intermediate commanders recommended approval of the applicant's discharge for unfitness with an undesirable discharge.

9.  The applicant was discharged from the Army on 1 May 1970 and he was issued a DD Form 214.  The Purple Heart was not listed on the document.

10.  A review of the applicant's military personnel records failed to reveal any evidence he was awarded the Purple Heart.

11.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam-era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart.

12.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty roster shows the applicant's name is listed as a casualty, on 24 May 1969, under casualty status code "23."  This casualty code refers to "hostile wounded in action, not serious, hospitalized."

13.  A review of the applicant's military records reveals he may be authorized additional awards that are not shown on his DD Form 214.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of Soldiers for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It shows that at the time of the applicant's assignment to Company C, 5th Battalion, 46th Infantry, the battalion was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders (DAGO) Number 42 (1972), as amended by DAGO Number 11 (1973).

15.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

	a.  Paragraph 2-13 contains the regulatory guidance for the Vietnam Service Medal.  It states that one bronze service star is authorized with this service medal for each Vietnam campaign a member is credited with participating in.

	b.  Table B-1 contains a list of Vietnam Conflict campaigns and shows that during the applicant's service in Vietnam participation credit was awarded for the:

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

	c.  The Purple Heart is awarded for a wound sustained while in action against an 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.

16.  The Army Discharge Review Board (ADRB) reviewed the applicant's discharge under the Department of Defense, Special Discharge Review Program (DOD SDRP).  On 5 July 1977, the ADRB upgraded his discharge to a general discharge under honorable conditions and issued him a new DD Form 214.

17.  The applicant's re-issued DD Form 214 shows he was discharged under honorable conditions on 1 May 1970.  He completed 1 year, 5 months, and 26 days of active service that included 1 year and 19 days of foreign service.  It shows the:

* National Defense Service Medal
* Vietnam Service Medal
* Combat Infantryman Badge
* Republic of Vietnam Campaign Medal
* 2 Overseas Service Bars

18.  On 28 August 1978, a DD Form 215 (Correction to DD Form 214) was issued by The Adjutant General of the Army showing the applicant's discharge was reviewed under the provisions of Public Law 95-126 and a determination was made that the characterization of service of under honorable conditions was warranted by DOD directive.

19.  The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.”
It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused from completing alternate service in accordance with Presidential Proclamation 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/ AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.  

20.  Public Law 95-126 (PL 95-126), in pertinent part, provided for a “Relook Program.”  All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of PL 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits; and
(2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures.

21.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, 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.

DISCUSSION AND CONCLUSIONS:

1.  A USARV casualty message and the Vietnam Casualty Roster show the applicant was wounded while serving in the RVN on 24 May 1969.  Thus, it would be appropriate to correct his records to show award of the Purple Heart.

2.  The applicant qualified for award of the Vietnam Service Medal and he served in three campaigns during his service in Vietnam.  Thus, he is entitled to three bronze service stars for wear on his already-awarded Vietnam Service Medal.

3.  General orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, it would be appropriate to correct his DD Form 214 to show this foreign unit award.

4.  The evidence of record shows the applicant was properly discharged in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

   a.  The applicant's discharge was reviewed under the DOD SDRP and his discharge was upgraded to a general discharge under honorable conditions.

   b.  His discharge was then reviewed under PL 95-126 and a determination was made that the characterization of service of under honorable conditions was warranted by DOD directive.

5.  The applicant's military service records show the applicant was convicted by special court-martial, he went AWOL in a combat area, and he failed to complete his 2-year service obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

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 Purple Heart for wounds received in action in the Republic of Vietnam on 24 May 1969 (Standard Name Line:  PFC Company C, 5th Battalion, 46th Infantry, 198th Infantry Brigade);

	b.  deleting from his DD Form 214 the "VSM"; and

	c.  adding to his DD Form 214 the:

* Purple Heart
* Vietnam Service Medal with three bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

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 his 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)                                         AR20110024085



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ABCMR Record of Proceedings (cont)                                         AR20110024085



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