IN THE CASE OF:	 

		BOARD DATE:	    11 October 2012

		DOCKET NUMBER:  AR20120004569 


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 to upgrade his general discharge, under honorable conditions to fully honorable.  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to add all service awards and campaign medals. 

2.  He states his personnel file shows he has an honorable discharge and he would like have an honorable discharge.  He adds the errors occurred because his company commander did not have all the information which was entered in his records. 

3.  The applicant provides:

* pages 1, 2, and 3 of his DA Form 20 (Enlisted Qualification Record)
* two DD Forms 214
* a mailing list for the 501st Engineer Company (Land Clearing) 

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.  He enlisted in the Regular Army on 2 October 1967.  After completion of training, he served in military occupational specialty 62E (Construction Machine Operator).

3.  The applicant provided a DD Form 214 for the period ending 14 July 1968 which shows he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted for a period of 4 years on 15 July 1968.

4.  A review of his DA Form 20 shows the following information:

* the highest grade he attained while serving on active duty was specialist four/E-4 in April 1969; however, he was reduced to the grade of private/E-1 in September 1970 as a result of a court-martial
* he served in Vietnam from 24 February 1969 through 20 February 1970 
* during his tour in Vietnam he was assigned to the 501st Engineer Company from 4 March to 2 May 1969 and Company B, 588th Engineer Battalion from 3 May 1969 to 20 February 1970
* he received ratings of "excellent", "fair", and "unsatisfactory" in conduct and efficiency during his second enlistment
* no special recognitions or acts of valor
* he was absent without leave (AWOL) during several periods for a total of 87 days

5.  A DD Form 458 (Charge Sheet) dated 24 March 1971 shows he was charged with one specification of escaping from lawful custody on 3 February 1971.  It was recommended he be tried by special court-martial.  His record shows he had two previous convictions by court-martial, military confinement, and numerous periods of AWOL.

6.  After consulting with a military attorney, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 for the good of the service.  In his request the applicant stated he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  

7.  In his request he also stated understood he could be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate.  He added that he understood that as the result of issuance of such a discharge, he could be deprived of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and state law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

8.  The applicant's chain of command unanimously recommended approval of his request for discharge for the good of the service and recommended he be issued an Undesirable Discharge Certificate.

9.  On 14 May 1971, the Commanding General of Fort Riley, KS, approved the applicant's request for discharge, for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, and directed he be furnished a General Discharge Certificate.

10.  Accordingly, he was discharged on 26 May 1971, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of trial by court-martial.  His DD Form 214 shows he completed a total of 3 years, 4 months, and 28 days of creditable active service and had 87 days of lost time due to AWOL.   His service was characterized as under honorable conditions and he was issued a General Discharge Certificate.

11.  The DD Form 214 for the applicant's first enlistment shows he was awarded the National Defense Service Medal.  

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge during that board's 15-year statute of limitations.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.   During the applicant's tour of duty, his units earned the following awards:

	a.  The 501st Engineer Company was awarded the Republic of Vietnam (RVN) Gallantry Cross with Palm Unit Citation by Department of the Army General Orders (DAGO) Number 54, dated 1974 and the RVN Civil Actions Honor Medal First Class Unit Citation by DAGO Number 43, dated 1970.

	b.  The 588th Engineer Battalion was awarded the Meritorious Unit Commendation (MUC) by DAGO Number 2, dated 1971 and the RVN Civil Actions Honor Medal First Class Unit Citation by DAGO Number 43, dated 1970.

14.  Department of the Army Pamphlet 672-3 also lists the campaign periods for the Vietnam era.  Three designated campaigns coincide with the applicant's period of service: 

* Tet 69 Counteroffensive 1969, 23 February 1969-8 June 1969
* Vietnam Summer-Fall 1969, 9 June 1969-31 October 1969
* Vietnam Winter-Spring 1970, 1 November 1969-30 April1 1970

15.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  It states:

	a.  The Vietnam Service Medal (VSM) is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  A bronze service star will be awarded for wear on the VSM for participation in each credited campaign.  

	b.  The RVN Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  

16.  Army Regulation 635-200, in effect at the time, set forth the sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate, but the separation authority may have directed a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would have been improper.

17.  Army Regulation 635-200, 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.  The applicant contends his record shows he was honorably discharged; however, his commander did not have this information and as a result, he was given a general discharge, under honorable conditions.  His contention is only partially true.

2.  He was given an honorable discharge on 14 July 1968 for the purpose of immediate reenlistment.  His DD Form 214 for that period correctly reflects this information.  

3.  However, the applicant's record shows that during his second enlistment he had two previous convictions by court-martial and went AWOL on several occasions totaling 87 days of lost time.

4.  The evidence further shows the applicant was charged with an offense for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face court-martial, he opted to submit a request for discharge, in lieu of trial by court-martial, for the good of the service. The applicant's discharge was approved and he was discharged accordingly.

5.  He was discharged under the provisions of chapter 10 of Army Regulation 635-200.  The characterization of service for this type of discharge is normally under other than honorable conditions; however, his service was characterized as under honorable conditions.  

6.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is believed that the reason for discharge and the characterization of service were both proper and equitable.

7.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his discharge.

8.  General orders awarded his units the following awards and as a result, it would be appropriate to correct his records to show:

* MUC
* RVN Gallantry Cross with Palm Unit Citation
* two RVN Civil Actions Honor Medal First Class Unit Citations

9.  His service in Vietnam and participation in three designated campaigns entitles him to award of the VSM with three bronze service stars and to have this award added to his DD Form 214.

10.  His service in Vietnam also entitles him to award of the RVN Campaign Medal with Device (1960).

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 DD Form 214:

* VSM with three bronze service stars 
* RVN Campaign Medal with Device (1960)
* MUC
* RVN Gallantry Cross with Palm Unit Citation
* RVN Civil Actions Honor Medal First Class Unit Citation (2nd Award)

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 upgrading 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)                                         AR20120004569





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ABCMR Record of Proceedings (cont)                                         AR20120004569



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