IN THE CASE OF:	  

		BOARD DATE:  2 January 2014

		DOCKET NUMBER:  AR20130007120 


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 under honorable conditions discharge to a fully honorable discharge
* correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Bronze Star Medal and Purple Heart

2.  The applicant states the medals were awarded to him for combat in Vietnam.  He also states when he returned from Vietnam he was made the section chief.  He was a minority Soldier, put in charge of a group of Soldiers who did not want him.  He could not handle this situation so he started drinking heavily.  He requested to be sent back to Vietnam but he was told it would take time, 6 to 9 months.  He was an emotional wreck so he left in an absent without leave (AWOL) status.  He was not in the right frame of mind at the time.  However, since his discharge he has led a good life.  He is married with a daughter and he is a skilled carpenter.  He is active in the community and church and he runs a prison ministry.  He also performs outreach work in a local nursing home.  He made a poor decision when he returned from Vietnam and he now asks the Board to grant him relief. 

3.  The applicant provides four character reference letters; a certificate showing award of the Purple Heart; an Honorable Discharge Certificate; and a certificate, citation, and orders showing award of the Bronze Star Medal. 


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 17 March 1966 and he held military occupational specialty 13D (Field Artillery Rocket Crewmember).  He served in Germany from on or about 1 August 1966 to on or about 24 August 1967 

3.  Special Orders (SO) Number 109, issued by Headquarters, 1st Battalion, 33rd Artillery, on 20 July 1967, awarded him the Expert Marksmanship Qualification Badge with Rifle Bar (M-14). 

4.  He was honorably discharged on 1 August 1967 for the purpose of immediate enlistment in the Regular Army (RA).  His DD Form 214 shows he was awarded or authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-14). 

5.  He enlisted in the RA on 2 August 1967.  He subsequently served in Vietnam from on or about 8 October 1967 to on or about 4 October 1968.  He was assigned to Battery G, 65th Artillery, 108th Artillery Group.  

6.  General Orders (GO) Number 4324, issued by Headquarters, U.S. Army Vietnam, on 11 September 1968, awarded him the Bronze Star Medal for service from October 1967 to October 1968.  

7.  His records do not contain orders awarding him the Purple Heart.  However, item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows the entry "Shrapnel in left leg 24 January 1968."  Furthermore, item 41 (Awards and Decorations) shows the entry "Purple Heart" but without the authority or GO number. 

8.  Upon completion of his Vietnam tour, he was reassigned to the 3rd Battalion, 63rd Artillery Regiment, Fort Bliss, TX.  

9.  On 23 April 1969, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for operating a vehicle in a reckless manner, disobeying a lawful order from Military Police to cooperate, and wrongfully appearing at Fort Bliss without his fatigue shirt.

10.  On 5 May 1969, he departed his unit in an AWOL status and on 5 June 1969, he was dropped from the Army rolls as a deserter.  He was arrested by civil authorities on 17 July 1969 and held in the Lexington County Jail.  He was released to military authorities on 22 July 1969. 

11.  On 11 August 1969, he again departed his unit in an AWOL status.  He ultimately returned to military control on 29 October 1969. 

12.  On 11 December 1969, he pled guilty and was convicted by a special court-martial of two specifications of AWOL from 5 May to 17 July 1969 and 11 August to 30 October 1969.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of pay, and confinement at hard labor for 
1 month.  The convening authority approved his sentence on 31 December 1969. 

13.  On 12 January 1970, after having been confined from 4 November 1969 to 4 January 1970, the applicant again departed his unit in an AWOL status.  He was apprehended and returned to military control on 17 February 1970.  He was placed in pre-trial confinement. 

14.  On 19 February 1970, his command preferred court-martial charges against him for one specification of AWOL 12 January 1970 to 16 February 1970.  

15.  On 9 March 1970, 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. In his request for discharge, he acknowledged he:

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

16.  On 26 March 1970, his intermediate commander recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate. 

17.  On 1 April 1970, his senior commander recommended approval of the discharge action with the issuance of a General Discharge Certificate

18.  On 7 April 1970, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, and directed the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 17 April 1970. 

19.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a general discharge.  He completed 1 year, 9 months, and
30 days of total active service during this period with 317 days of lost time.  His DD Form 214 also shows he was awarded or authorized the Vietnam Service Medal and Vietnam Campaign Medal with Device "1960." 

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

21.  He submitted:

	a.  A certificate, dated 20 February 1969, that shows he was awarded the Purple Heart for wounds received in action on 24 January 1968.  

	b.  Multiple character reference letters and/or letters of support from friends, employers, and a landlord who attest to his honesty, good standing in the community, and friendship.

22.  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 honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.  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.

23.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  It states the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify 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.

24.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows during his service with Battery G, 65th Artillery, from October 1967 to October 1968, in Vietnam, this unit was cited for awards of the:

* Valorous Unit Award, for service from 15 to 31 October 1967, based on Department of the Army General Order (DAGO) Number 18, dated 1970
* Valorous Unit Award, for service from 24 January to 16 February 1968, based on DAGO Number 48, dated 1968
* Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 8, dated 1974

25.  Appendix B of Army Regulation 600-8-22 shows that during his service in Vietnam, campaign participation credit was awarded for the following 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. 

* Vietnam Counteroffensive Phase III, 1 June 1967 - 29 January 1968
* Tet Counteroffensive - 30 January - 1 April 1968
* Vietnam Counteroffensive Phase IV, 2 April - 30 June 1968
* Vietnam Counteroffensive Phase V, 1 July - 1 November 1968




DISCUSSION AND CONCLUSIONS:

1.  GO awarded the applicant the Bronze Star Medal which is not shown on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show this award. 

2.  His DA Form 20 shows he was wounded in action on 24 January 1968.  He provides a certificate confirming his receipt of the Purple Heart for that injury.  Therefore, he is entitled to correction of his DD Form 214 to show this award. 

3.  GO awarded his unit in Vietnam two awards of the Valorous Unit Award and one award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to correction of his DD Form 214 to show these unit awards.

4.  He was awarded the Vietnam Service Medal.  Additionally, he participated in four campaigns while serving in the Republic of Vietnam; therefore, he is entitled to award of four bronze service stars to be affixed to his already-awarded Vietnam Service Medal and correction of his DD Form 214 to show these service stars.

5.  As for the characterization of service: 

	a.  The applicant's record shows 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.

	b.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

	c.  His record reveals an extensive history of misconduct that included one instance of NJP, a court-martial conviction, and multiple instances of AWOL.  There would have been several other legitimate avenues he could have addresses the issues he described, had he chosen to use them. 

	d.  His combat service as well as his awards and decorations are noted.  However, based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  An undesirable discharge was considered appropriate under chapter 10, Army Regulation 635-200.  It appears the separation authority considered his Vietnam service and ordered a general discharge.  In effect, the applicant already received an upgrade of his discharge.  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 adding to his DD Form 214 ending on 17 April 1970:

* Bronze Star Medal
* Purple Heart
* four bronze service stars to be affixed to his already-awarded Vietnam Service Medal
* Valorous Unit Award (2nd Award)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

2.  The Board further determined that 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 to a fully honorable 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)                                         AR20130007120





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130007120



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1