IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120006711 


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 records as follows:

* Correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Army Good Conduct Medal, Overseas Service Ribbon, and any other awards and unit citations 
* Removal of two DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his records

2.  The applicant states:

* His research at the Institute of Heraldry and of Army regulations supports his entitlement to additional awards
* He believes his accomplishments in the service as well as his excellent conduct as recorded on his DA Form 20 (Enlisted Qualification Record) should justify this action

3.  The applicant provides:

* DD Form 214
* DA Form 20
* Multiple orders/amendments of orders of assignment and reassignment
* Individual Training Record
* DA Form 348 (Equipment Operator's Qualification Record)
* FP Form 939
* Certificate of Training
* DA Form 11-78 (Projectionist License)
* Commander's Evaluation
* DA Form 2627-1, dated 1 September 1969
* DA Form 2627-1, dated 13 July 1970

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 records show he was inducted into the Army of the United States on 9 December 1968 and he held military occupational specialty 52G (High Voltage Electrician).   

3.  He served in Vietnam from 28 April 1969 to 8 April 1970.  He was assigned to:

* 610th Engineer Company, 864th Engineer Battalion, from 5 May to 12 June 1969
* 542nd Engineer Detachment, 815th Engineer Battalion (Construction) from 15 June 1969 to 6 April 1970

4.  On 1 September 1969, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for disobeying a lawful order to sit down in the truck in which he was riding.  His punishment consisted of 7 days of extra duty.  He elected not to appeal his punishment.

5.  He was reassigned to the 2nd Battalion, 50th Infantry, Fort Hood, TX, upon completion of his Vietnam tour.

6.  On 13 July 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at the time prescribed on two separate occasions.  His punishment consisted of a forfeiture of pay.  He elected not to appeal his punishment.

7.  He was honorably released from active duty in the rank/grade of specialist five (SP5)/E-5 on 8 December 1970 and he was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.  

8.  His DD Form 214 shows he completed 2 years of active service.  This form also shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal with three bronze service stars
* Republic of Vietnam Campaign Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

9.  A review of the applicant's service record reveals that aside from the two instances of NJP, there is no other derogatory information that would disqualify him for the first award of the Army Good Conduct Medal.  Additionally, item 38 (Record of Assignment) of his DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his military service.

10.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualified period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.

11.  Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross Unit Citation with Palm for service in Vietnam to the following units:

* Headquarters, United States Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973
* Headquarters, United States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973 

12.  Army Regulation 600-8-22 (Military Awards) states the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981. 

13.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  Chapter 3 addresses the polices applicable to NJP.  It provides that commanders may impose NJP for the administration of discipline under the provisions of Article 15 of the UCMJ; however, commanders should first use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures, to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction, and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  Prompt action is essential for NJP to have the proper corrective effect.  Paragraph 3-15 states when punishment is imposed under Article 15, all action taken, including notification, acknowledgments, imposition, appeal, action on appeal, or any other action, will be recorded as follows:

	a.  Paragraph 3-15b covers the distribution of records of punishment.  It states DA Forms 2627, 2627-1, and 2627-2 will be prepared in an original and two copies.  Any written statement or other documentary evidence pertaining to the case which has been considered by the officer authorized to impose the NJP will be attached to the original file.  Subparagraph (2) states, in cases involving enlisted Soldiers, standard distribution for the forms will be as follows:

		(1)  The original of the DA Form 2627, 2627-1, or 2627-2 will be forwarded to the U.S. Army Personnel Services Support Center, ATTN:  AGPE, Fort Benjamin Harrison, IN 46249, for filing as a permanent document in the Army Military Human Resources Record (AMHRR) (formerly known as the official military personnel file).

		(2)  The first copy of the DA Form 2627, 2627-1, or 2627-2 will be retained with the unit of assignment, and filed above the Field Personnel File Divider in the individual's DA Form 201 (Military Personnel Records Jacket (MPRJ)).

		(3)  The second copy will be given to the Soldier receiving the NJP.  

	b.  Paragraph 3-15d covers the retention and disposition of DA Forms 2627, 2627-1, and 2627-2.  It provides that the MPRJ copy will be withdrawn and destroyed upon transfer of the individual from the organization, upon the complete setting aside of all punishments imposed, or upon the expiration of       2 years from imposition of the punishment, whichever shall first occur, provided that at the time of transfer, a period of 1 year has elapsed since imposition of the punishment and that all punishment imposed has been executed (with forfeitures collected and any period of detention of pay expired) and action has been completed on any appeal from such punishment.  If these conditions do not exist at time of transfer, the copy of the record of proceedings will be retained in the individual's personnel records which accompany him to his new assignment and retained therein until the foregoing conditions no longer exist.  In the case of enlisted persons, the officer may direct that the record of punishment be filed and administered in a manner that will preclude its availability to persons considering the individual for promotion.  A statement reflecting any such direction will be made in Section III of DA Form 2627 or Section V of DA Form 2627-1, as appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Army Good Conduct Medal:

	a.  There are no official orders in the applicant's records and he provides none to show he was recommended for or awarded the Army Good Conduct Medal.  Additionally, his records show he received NJP on two separate occasions. 

	b.  Nevertheless, the evidence of record confirms he served honorably during the period 9 December 1968 through 8 December 1970.  He completed a combat tour in Vietnam, received "excellent" conduct and efficiency ratings throughout his military service, and attained the rank/grade of SP5/E-5.  

	c.  Aside from the above minor NJP, his records do not contain any derogatory information that would have disqualified him from receiving his first award of the Army Good Conduct Medal.  Therefore, it would be appropriate to award him the first award of the Army Good Conduct Medal based on completion of a qualifying period of Federal military service and correct his DD Form 214 to show this medal.

2.  General orders awarded his unit in Vietnam the Republic of Vietnam Gallantry Cross with Palm Unit Citation when he was assigned to the unit which is not shown on his DD Form 214; therefore, he is entitled to correction of his 
DD Form 214 to show this unit award.

3.  With respect to the Overseas Service Ribbon, this award was created in August 1981 and may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an active Army status on or after 1 August 1981.  He did not have an active status after that date.  He is not entitled to this award.

4.  With respect to removal of the NJP from his records:

	a.  He received NJP on two separate occasions:  while in Vietnam, on 1 September 1969, for disobeying a lawful order and at Fort Hood, on 13 July 1970, for failing to go to his appointed place of duty at the time prescribed on two separate occasions.  In both cases he elected not to appeal his punishment.  There is nothing in his records showing either Article 15 was false or in error. 

	b.  With respect to removing his Article 15s from his MPRJ, the governing Army regulation states the original DA Form 2627, 2627-1, or 2627-2 will be forwarded to the U.S. Army Personnel Services Support Center, for filing as a permanent document.  Since his available record does not contain an AMHRR, the remaining hardcopy record is the only official record to maintain the historical account of his service.  Absent an AMHRR, it would be impractical, from a historical standpoint, to permanently remove his records of NJP.  As such, the applicant is not entitled to the requested relief.

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:

* awarding him the Army Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 9 December 1968 through 8 December 1970
* adding to his DD Form 214 the Army Good Conduct Medal (1st Award) and the 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 the Overseas Service Ribbon or the removal of his Article 15s from his AMHRR.



      ______________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)                                         AR20120006711



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ABCMR Record of Proceedings (cont)                                         AR20120006711



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