IN THE CASE OF:	   

		BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20140019910 


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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 26 November 1968 to show:

   a.  his service is honorable in lieu of undesirable and the reason for discharge was “hardship” rather than “unfitness” and

   b.  his service in the Republic of Vietnam and all awards he is entitled to receive, to include the Overseas Service Medal and the Combat Infantryman Badge.

2.  The applicant states his record does not show he served in Vietnam and as a result he is not entitled to health care for disabilities incurred as the result of exposure to herbicides in Vietnam.

3.  The applicant provides:

* two DD Forms 214
* a self-authored statement
* letters of support
* Certificates of Birth and Death
* post-service employment information
* numerous documents from his military personnel file


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists an accredited Veterans Service Officer as Counsel, she did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

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 (RA) on 23 September 1965.  He completed training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 3 October 1966, he was honorably discharged to immediately reenlist.  The DD Form 214 he was issued shows he was awarded the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).

4.  The applicant reenlisted in the RA on 4 October 1966.  On 22 December 1966, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 10 October to 23 November 1966.

5.  His record contains a DA Form 20 (Enlisted Qualification Record).  Item 21 (Foreign Service) shows the applicant served in Vietnam effective 27 February 1967.  His record also contains a letter, dated 18 August 1967, written to the Commanding General, 1st Air Cavalry Division, that states the applicant departed the organization on 9 April 1967 on emergency leave.  There is no evidence in the available records which shows he served in active ground combat while assigned or attached to an infantry unit of brigade, regimental, or smaller size or that he returned to the Republic of Vietnam.  Therefore, his foreign service equals 1 month and 14 days.

6.  His record contains Special Court-Martial Order Number 1379 issued by Headquarters, Special Troops, U.S. Army Armor Center, Fort Knox, KY, dated 
9 October 1968, which shows he pled guilty and he was found guilty of violating three specifications of Article 86, UCMJ.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $97.00 pay for 6 months.  The sentence was adjudged on 4 October 1968.  On 9 October 1968, only so much of the sentence as provided for confinement at hard labor for 4 months was approved and duly executed.

7.  On 23 October 1968, the applicant's commander notified him that he had initiated elimination proceedings against him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) due to unfitness.

8.  On 23 October 1968, the applicant consulted with counsel.  He was advised by counsel of the basis for his separation for unfitness.  He waived consideration and a personal appearance before a board of officers, waived representation by military counsel, and made no statements in his own behalf.  He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  Additionally, he acknowledged he understood as the result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life.

9.  On 12 November 1968, the applicant's commander recommended him for separation due to unfitness under the provisions of Army Regulation 635-212.  The commander stated the discharge was recommended because, in effect, the applicant had shown a propensity for being AWOL despite attempts to rehabilitate him as a satisfactory Soldier.  The commander requested a waiver of further efforts for rehabilitation.

10.  On 19 November 1968, the appropriate authority approved the recommendation for discharge and directed that he be discharged due to unfitness and with an undesirable discharge.

11.  On 21 November 1968, the unexecuted portion of the approved sentence to confinement at hard labor for 4 months was remitted effective the date of his administrative discharge.
12.  On 26 November 1968, he was discharged under the provisions of Army Regulation 635-212 for unfitness frequent involvement in incidents of a discreditable nature with civil or military authorities, and given an undesirable discharge.  The DD Form 214 he was issued for this period of service shows he completed 5 months and 10 days of net active service with 623 days of time lost.  Item 22c (Foreign and/or Sea Service) contained the entry "0  0  0" and no awards or decorations were listed.

13.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge.  After careful consideration of his military records and all other available evidence, it was determined that he was properly discharged and on 24 July 1975 he was notified that his appeal was denied.  

14.  The applicant provides a self-authored statement in which he claims, in part:

   a.  He was raised in a poverty-stricken area by a poor family.  At age 17, he joined the Army to help take care of his family while continuing his education.  He did well and sent his pay home.  While on his initial assignment at Fort Knox, KY, he completed two leadership schools and was given the rank and responsibilities of a sergeant without holding the pay grade.

   b.  In October 1966, he decided to make the military his career.  His father needed open heart surgery and he was able to reenlist for a bonus which would cover the cost of his father's medical expenses.  He also received 30 days of leave and he went home to assist his family.  When his leave was up, his father was still in the hospital.  Not knowing what to do, he stayed beyond his leave ending date without permission until his father was released from the hospital.

   c.  Shortly after completing his punishment, he received orders for Vietnam.  He went to Vietnam and was assigned to 1st Battalion, 5th Cavalry Regiment.  After a few months he received a Red Cross message that his grandfather had died.  He returned home to find his grandfather buried and his father's health very fragile.  He knew he could not leave and return to Vietnam only to repeat the scenario with his father.

   d.  Despite having additional leave available, his unit would not extend his emergency leave and he was offered a choice of a discharge or return to Vietnam.  He knew he would not be given another emergency leave if his father died and he could not deal with not being able to say goodbye.  
   
   e.  He is now 66 years old and he regrets the way his military career ended.  He was never informed of the possibility of a hardship discharge or that he could be assigned closer to home.  His father died less than 3 years after he was discharged from the service.  He is a contributing member of society, he has obtained additional schooling and specialized training, and has been a loyal employee for 23 years.

15.  The applicant also provides letters from family members who attest to his struggles and successes in his post-service life.

16.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.

   a.  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.

   b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

18.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in the Republic of Vietnam.  During the period in which the applicant was assigned to Company C, 1st Battalion, 5th Cavalry Regiment, his unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 9 August 1965 to 19 May 1969 by Department of the Army General Orders Number 59, dated 1969.

19.  Army Regulation 600-8-22 (Military Awards) states 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.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  

20.  Army Regulation 600-8-22 states a bronze service star is authorized with the Vietnam Service Medal award for each Vietnam campaign a member is credited with participating in.  Appendix B shows that during his service in Vietnam, participation credit was awarded for the Vietnam Counteroffensive Phase II campaign.

21.  Army Regulation 600-8-22 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.

22.  Army Regulation 600-8-22 states the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental, or smaller size.    

23.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

24.  The request for the Combat Infantryman Badge, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

25.  Army Regulation 635-5 (Separation Documents) in effect at the time prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It is important that information entered on the form should be complete and accurate.  Section III of the regulation contained guidance on the preparation of the +DD Form 214.  It stated that:

   a. item 22c would show the total active service performed outside the continental limits of the United States, for the period covered by the DD Form 214, and the last overseas theater service in which the service was performed (e.g., U.S. Army Vietnam (USARV), etc.); and

   b. item 30 (Remarks) was used for Department of the Army mandatory requirements when a separate block was not available and as a continuation entry; however, it did not mandate an entry to document service in the Republic of Vietnam, as was the case with future editions.

 DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded and the reason should be changed have been carefully examined and appears to be without merit.

2.  The applicant's service was characterized by more than one incident of being AWOL, a pattern and apparent disregard for military authority.  As a result, his immediate commander initiated separation action against him under Army Regulation 635-212 for unfitness.

3.  The applicant provides insufficient evidence to support his contention that he should have been granted a hardship discharge or reassigned to an area closer to his home.  Contrary to his beliefs, the available evidence shows all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, it would be inappropriate to support his request for an honorable or a general discharge.

5.  However, the available evidence shows the applicant arrived in the Republic of Vietnam on 27 February 1967 and he departed on emergency leave on 9 April 1967 (a period of 1 month and 14 days).  Therefore, he is entitled to correction of his record to show this service.

6.  The evidence revealed the applicant participated in one campaign during his service in Vietnam.  Therefore, he is authorized award of the Vietnam Service Medal with one bronze service star.

7.  Orders authorized award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to his unit during his period of service in Vietnam.  Therefore, his DD Form 214 should be corrected to show this unit award.

8.  The Overseas Service Ribbon 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.  The evidence clearly shows the applicant did not serve in an active status after 1 August 1981.  Therefore, he is not entitled to have his records corrected to show award of the Overseas Service Ribbon.

9.  While the available evidence is insufficient for awarding the applicant a Combat Infantryman Badge, this in no way affects his right to pursue his claim for the Combat Infantryman Badge by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

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 amending his DD Form 214 for the period ending 26 November 1968 as follows:

a. adding the entries "USARV" and "0  01  14" to item 22c;

   b.  adding the following awards to item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized):

* Vietnam Service Medal with one bronze service star
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

c. adding the entry "SERVICE IN VIETNAM FROM 27 FEBRUARY 1967 TO 9 APRIL 1967" to item 30

2.  The Board further determined that 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 the applicant's discharge and awarding him the Overseas Service Ribbon and Combat Infantryman Badge.  



      _____________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)                                         AR20140019910



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ABCMR Record of Proceedings (cont)                                         AR20140019910



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