IN THE CASE OF:  	  

		BOARD DATE:  4 June 2015	  

		DOCKET NUMBER:  AR20140018314 


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 that his awards of the Bronze Star Medal with “V” Device, Army Commendation Medal, Air Medal, and additional award of the Purple Heart be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that his DD Form 214 does not reflect his awards of the Bronze Star Medal with “V” Device, Army Commendation Medal, Air Medal, and an additional award of the Purple Heart.  Additionally, he desires his general discharge to be upgraded to a fully honorable discharge as he has been a model citizen since his discharge and has been active in veterans issues.

3.  The applicant provides a copy of his DD Form 214, a newspaper article, and copies of his orders awarding him the Bronze Star Medal with “V” Device and Army Commendation Medal with “V” Device.

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 17 April 1967 for a period of     3 years.  He completed his basic training at Fort Bragg, North Carolina and his advanced individual training as a light weapons infantryman at Fort Polk, Louisiana before receiving orders transferring him to Vietnam.  He had orders to report to Oakland Army Base, California on 19 September 1967.  

3.  On 23 October 1967, nonjudicial punishment was imposed against him at Oakland Army Base for being absent without leave (AWOL) from 19 September to 12 October 1967.  He departed for Vietnam on 25 October 1967 for assignment to Company D, 5th Battalion, 7th Cavalry Regiment, 1st Cavalry Division.  He was advanced to the pay grade of E-4 on 8 February 1968.

4.  On 24 April 1968, the applicant was wounded as a result of enemy action.  He received gunshot wounds to the left buttock and groin area and was hospitalized in Vietnam.  General Orders Number 2177 issued by Headquarters, 1st Cavalry Division awarded the applicant the Purple Heart for wounds received on 24 April 1968.  General Orders Number 66 issued by Headquarters, 85th Evacuation Hospital also awarded him the Purple Heart for wounds received on 24 April 1968.

5.  On 26 May 1968, he was transferred to Walson Army Hospital at Fort Dix, New Jersey where he remained until 3 September 1968 when he was transferred to Fort Lewis, Washington.  

6.  On 14 March 1969, he was convicted by a summary court-martial at Fort Meade, Maryland of being AWOL from 1 February to 3 March 1969.  He was sentenced to confinement at hard labor for 1 month.

7.  On 14 August 1969, he was convicted by a special court-martial at Fort Meade of being AWOL from 14 April to 24 July 1969.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $50.00 for 3 months.

8.  On 26 February 1970, he was convicted by a special court-martial at Fort Knox, Kentucky of being AWOL from 1 November to 29 December 1969.  He was sentenced to confinement at hard labor for 4 months, a forfeiture of $50.00 for 4 months and reduction to the pay grade of E-1.  He was transferred to the Correctional Training facility at Fort Riley, Kansas to serve his confinement.

9.  On 17 April 1970, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-212 for unsuitability.  He cited as the basis for his recommendation that the applicant had received considerable counseling since his arrival by social workers, leadership team and unit cadre and he had not responded favorably to the counseling or the duties given to him.  He also opined that the applicant would go AWOL again if reassigned.

10.  After consulting with defense counsel, the applicant waived his rights and elected to submit a statement in his own behalf whereas he asserted he was accepting the discharge because of his wounds.  He asserted that his personality or anything else had anything to do with it and that he would like to stay in the Army but his wounds were giving him too much trouble.

11.  The appropriate authority approved the recommendation for discharge on  27 April 1970 and directed that he be furnished a General Discharge Certificate.

12.  Accordingly, he was discharged under honorable conditions on 1 May 1970 under the provisions of Army Regulation 635-212 for unsuitability due to a personality disorder (SPN 264).  He had served 2 years, 1 months, and 4 days of active service and had 341 days of lost time due to AWOL and confinement.  His DD Form 214 issued at the time of his discharge shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, Vietnam Campaign Medal, Purple Heart, and he participated in three campaigns.

13.  A review of his official records shows that General Orders Number 8953 issued by Headquarters, 1st Cavalry Division on 23 July 1960 awarded the applicant the Air Medal.  Additionally, there is no evidence to show that he was wounded more than once or that he was awarded two Purple Hearts for two separate wounds.

14.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations) was revised on 1 December 1976 following settlement of a civil suit.  Thereafter,
the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment.  Further, any separation for unsuitability based on a personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  In connection with these changes, a Department of the Army memorandum, dated 14 January 1977, better known as the "Brotzman Memorandum," was promulgated.  It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrades of discharges based on personality disorders.  A second memorandum, dated 8 February 1978, better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Convictions by general court-martial or by more than one special court-martial were determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

16.  Army Regulation 600-8-22 (Military Awards), paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.

17.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows the applicant’s unit was cited for awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation during the period he served with the unit.

18.  Army Regulation 600-8-22 (Military Awards) states 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.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided orders showing that he was awarded the Bronze Star Medal with “V” Device and the Army Commendation Medal with “V” Device and is entitled to have those awards added to his DD Form 214.

2.  He was also awarded the Air Medal and is entitled to have that award added to his DD Form 214 as well.

3.  The applicant served in three campaigns in Vietnam and is entitled to wear three bronze service stars on his already-awarded Vietnam Service Medal and to have them added to his DD Form 214.

4.  Additionally, his unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during the period he served with the unit and is entitled to have that award added to his DD Form 214.

5.  The applicant’s contention that an additional award of the Purple Heart has been noted and appears to lack merit.  The evidence of record shows only one wound received in Vietnam on 24 April 1968 and he was awarded the Purple Heart (albeit twice) for that wound.

6.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

7.  Consequently, given his disciplinary record, it appears that the above-mentioned memoranda should not be applied to this case and that his discharge should not be upgraded to a fully 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:

* Deleting the award of the Vietnam Service Medal from his DD Form 214
* Adding the awards of the Vietnam Service Medal with three bronze service stars, Bronze Star Medal with “V” Device, Army Commendation Medal with “V” Device, Air Medal, and Republic of Vietnam Gallantry Cross with Palm Unit Citation to his DD Form 214
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 adding a second award of the Purple Heart to his records and upgrading his general 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)                                         AR20140018314





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ABCMR Record of Proceedings (cont)                                         AR20140018314



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