IN THE CASE OF:	

		BOARD DATE:	    17 June 2014

		DOCKET NUMBER:  AR20130017381 


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 bad conduct discharge to honorable and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Combat Infantryman Badge.

2.  The applicant states, in effect, he served in Vietnam for over a year and was awarded the Combat Infantryman Badge, though it was not annotated on his DD Form 214.  As a result of the intense racial problems/tension in his unit, he was singled out, placed under arrest, and court-martialed.  He did not receive a fair trial.

3.  The applicant provides a self-authored statement and his DD Form 214.

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 enlisted in the Regular Army on 19 July 1967 and held military occupational specialties 11B (Light Weapons Infantryman), 31B (Field Communications Electronics Equipment Mechanic), and 67A (Aircraft Maintenance Apprentice).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  His DA Form 20 (Enlisted Qualification Record) shows:

	a.  He was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Combat Infantryman Badge (by Headquarters, 4th Infantry Division, Special Orders (SO) Number 88, dated 28 March 1968)
* Armed Forces Expeditionary Medal (Korea)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)

	b.  He was assigned to Vietnam from 19 December 1967 to on or about 17 March 1968 with Company B, 1st Battalion, 35th Infantry Regiment, 4th Infantry Division.

	c.  He was assigned to Korea from 19 March 1968 to 24 January 1969 with Headquarters and Headquarters Company, 7th Infantry Division, from 5 April 1968 to 14 August 1968 and with Company B, 1st Battalion, 31st Infantry Regiment, 7th Infantry Division, from 15 August 1968 to 24 January 1969.

	d.  He was again assigned to Vietnam from 25 January 1969 to 5 May 1970 with:

* Battery B, 4th Battalion, 56th Artillery, from 3 March 1969 to 19 June 1969
* Company L (Ranger), 75th Infantry Regiment, from 25 July to 21 September 1969
* Company B, 159th Aviation Battalion, from 22 September to 18 December 1969
* Company A, 159th Aviation Battalion, from 19 December 1969 to 5 May 1970

4.  Headquarters, 101st Airborne Division (Airmobile), Vietnam, General Orders (GO) Number 14977, dated 18 December 1969, awarded him the Air Medal.

5.  Headquarters, 101st Airborne Division (Airmobile), Vietnam, General Court-Martial Order Number 26, dated 7 July 1970, shows he was found guilty and convicted of escaping from the lawful custody of a noncommissioned officer (NCO), unlawfully confining an NCO in the NCO's quarters, and wrongfully communicating a threat to injure a commissioned officer.  The sentence was adjudged on 6 May 1970.  The court sentenced him to a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 18 months, and reduction to the rank/grade of private (PVT)/E-1.  On 7 July 1970, the convening authority approved the sentence as adjudged and the record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  The U.S. Army Court of Military Review affirmed the approved findings of guilty and a modified sentence on 20 August 1970.  The court approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 13 months, and reduction to PVT/E-1.

7.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 203, dated 18 February 1971, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.  Accordingly, he was discharge on 15 March 1971.

8.  His DD Form 214 shows he was discharged under other than honorable conditions on 15 March 1971 as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1b.  He was issued a Bad Conduct Discharge Certificate.  He completed 2 years, 9 months, and 17 days of creditable military service.  His DD Form 214 also shows in:

	a.  item 22c (Foreign and/or Sea Service), he completed 1 year, 11 months, and 9 days of foreign service;

	b.  item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), no awards; and

	c.  item 30 (Remarks), he accrued 74 days of lost time from 6 May 1970 to 18 July 1970 and 240 days of lost time subsequent to his expiration of term of service from 19 July 1970 to 15 March 1971.  His foreign service in Korea and Vietnam was not listed.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11, in effect at the time, prescribed the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	b.  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.

	c.  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.

10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

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

	a.  The Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

	b.  The Republic of Vietnam 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.

	c.  The Vietnam Service Medal 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.  A bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  A silver service star is worn in lieu of five bronze service stars.  Appendix B shows that during his service in Vietnam, participation credit was awarded for the following seven campaigns:

* Vietnam Counteroffensive Phase III (1 June 1967-29 January 1968)
* Tet Counteroffensive (30 January 1968-1 April 1968)
* Vietnam Counteroffensive, Phase IV (2 April 1968-30 June 1968)
* Tet 69 Counteroffensive (23 February 1969-8 June 1969)
* Vietnam Summer-Fall 1969 (9 June 1969-31 October 1969)
* Vietnam Winter-Spring 1970 (1 November 1969-30 April 1970)
* Sanctuary Counteroffensive (1 May 1970-30 June 1970)

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  During the applicant's assignment:

	a.  the 1st Battalion, 35th Infantry Regiment, was awarded the:

* Republic of Vietnam Gallantry Cross Unit Citation for the period 1 August 1967 to 28 July 1969 by Department of the Army General Orders (DAGO) 38, dated 1970
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 1 August 1967 to 31 October 1969 by DAGO 53, dated 1970

	b.  the 7th Infantry Division was awarded the Republic of Korea Presidential Unit Citation for the period 17 September 1950 to 27 March 1971 by DAGO 50, dated 1971;

	c.  Company L, 75th Infantry Regiment, was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 1 February 1969 to 2 May 1970 by DAGO 48, dated 1971;

	d.  Company B, 159th Aviation Battalion, was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 25 February 1969 to 2 May 1970 by DAGO 48, dated 1971; and

	e.  Company A, 159th Aviation Battalion, was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 2 February 1969 to 2 May 1970 by DAGO 48, dated 1971.

13.  Department of the Army Pamphlet 672-3 states not more than one Republic of Vietnam Gallantry Cross Unit Citation will be worn by any individual.  Although multiple awards of this unit citation are not authorized for wear, official military and historical records will indicate all awards received.  However, in the case of duplicate awards covering the same period of time only one award will be recorded in official military and historical records.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army.  It established standardized policy for preparing and distributing the DD Form 214.

	a.  For item 22c, enter total active duty service performed outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater in which service was performed (e.g., U.S. Army Pacific (USARPAC)).

	b.  For item 24, enter all decorations, service medals, campaign credits, and badges awarded or authorized from section 41 (Decorations and Awards) of the individual's DA Form 20, omitting authorities cited therein.

	c.  For item 30, indicate Indochina and Korea service on or after 5 August 1964 by entering inclusive dates of service for Vietnam and indicating "yes" or "no" for the service in Indochina and Korea.  Where the records reflect assignment to an organization in Burma, Laos, Thailand, Cambodia, or Vietnam, show "yes" for Indochina.  Sample entries are as follows:

* to show service in Vietnam only – "Vietnam – 21 May 1969 to 10 June 1971, Indochina – Yes, Korea – No"
* to show service in Indochina (other than Vietnam) only – "Indochina – Yes, Vietnam – No, Korea – No"
* to show service in Korea only – "Indochina – No, Vietnam – No, Korea – Yes"

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a general court-martial which sentenced him to a bad conduct discharge.  His trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

2.  He provided no evidence to show his discharge or the court's decision to find him guilty was unjust or as a result of improper actions.  There is no error or injustice in his records; there is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded.

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge.

4.  GO awarded him the Air Medal and SO awarded him the Combat Infantryman Badge.  Therefore, he is entitled to correction of his DD Form 214 to add these awards.

5.  He served a qualifying period in Vietnam for award of the Republic of Vietnam Campaign Medal with Device (1960) and in Korea for award of the Korea Defense Service Medal.  Therefore, his DD Form 214 should be corrected to show these awards.

6.  His records show his service in Vietnam met the time requirements for award of the Vietnam Service Medal.  Additionally, he participated in seven campaigns while serving in Vietnam.  Therefore, he is authorized one silver and two bronze service stars for wear on his Vietnam Service Medal and his DD Form 214 should be corrected to show this award.

7.  DAGO awarded his units in Korea and/or Vietnam the Republic of Korea Presidential Unit Citation, Republic of Vietnam Gallantry Cross with Palm Unit Citation (2nd Award), and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation (3rd Award) during his period of service.  Therefore, his DD Form 214 should be corrected to show these unit awards.

8.  The evidence of record shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  Therefore, his DD Form 214 should be corrected to show this award.

9.  Item 22c of his DD Form 214 incorrectly shows he completed 1 year, 11 months, and 9 days of foreign service.  The evidence of record shows that prior to the start of his lost time, he served in Vietnam and Korea from 19 December 1967 to 5 May 1970 (2 years, 4 months, and 17 days), with his last overseas location being Vietnam.  Therefore, he is entitled to correction of his DD Form 214 to show his proper foreign service.

10.  Item 30 of his DD Form 214 does not show his service in Korea or Vietnam.  Therefore he is entitled to correction of his DD Form 214 to show the entry "Vietnam – 19 December 1967 to 18 March 1968 and 25 January 1969 to 5 May 1970, Indochina – Yes, Korea – Yes."

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:

* deleting the current entry from item 22c of his DD Form 214 and replacing it with the entry "2  4  17"
* adding the following awards to item 24 his DD Form 214 –

* Air Medal
* Korea Defense Service Medal
* Vietnam Service Medal with one silver and two bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Korea Presidential Unit Citation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation (2nd Award)
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation (3rd Award)
* Combat Infantryman Badge
* Marksman Marksmanship Qualification Madge with Rifle Bar (M-14)

* adding the entry "Vietnam – 19 December 1967 to 18 March 1968 and 25 January 1969 to 5 May 1970, Indochina – Yes, Korea – Yes" to item 30 of his DD Form 214

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 bad conduct discharge to honorable or general under honorable conditions.



      ____________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)                                         AR20130017381



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ABCMR Record of Proceedings (cont)                                         AR20130017381



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