PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           20 April 2000
	DOCKET NUMBER:   AR1999024677

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Roger Able		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                 advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

3.  He states, in effect, that he has never applied for an upgrade because until recently he was unaware that he could make application.

4.  The applicant’s military records show that on 25 May 1967 he was inducted into the U.S. Army for a period of two years.  He successfully completed basic combat training at Fort Bragg, North Carolina, and advanced individual training (AIT) at Ft. Gordon, Georgia.  Upon completion of AIT he was awarded military occupational specialty (MOS) 11B (Infantryman).  He next completed Basic Airborne School at Fort Benning, Georgia.

5.  On 18 December 1967 he departed in casual status en route to Vietnam where he served for 26 months.  He was further assigned as a rifleman and squad leader with the 327th Infantry. 

6.  During the period of service under review, while in Vietnam, he was promoted to specialist/E-4 on 20 May 1968; and, sergeant/E-5 on 31 October 1968.

7.  On 22 October 1968 he was awarded the Bronze Star Medal in connection with meritorious achievement for military operations against a hostile force from 1 January 1968 to 31 August 1968.  

8.  He participated in the Vietnam Counter Offensive Phase III, IV, V, and VI, and the TET Counter Offensive of 1968 earning the Combat Infantryman Badge (CIB).

9.  On 14 February 1969, at Bien Hoa, Vietnam, he was honorably discharged for the purpose of immediate reenlistment.  On 15 February 1969 he reenlisted in the Regular Army for a period of 6 years for present duty assignment.  At the time of his reenlistment he held the rank of sergeant/E-5 and had completed 1 year, 8 months, and 21 days of prior active honorable service.  

10.  On 26 April 1969 he was awarded the Bronze Star Medal with “V” Device for heroic actions in saving wounded soldiers on 24 January 1968 during the TET Offensive.

11.  On 9 November 1969 he was promoted to the rank of staff sergeant/E-6.    

12.  On 3 February 1970 he was awarded the Army Commendation Medal for meritorious achievement from 1 May 1969 to 30 September 1969.

13.  On 8 February 1970 he was awarded the Bronze Star Medal for meritorious service from 1 March 1969-31 December 1969.

14.  On 17 February 1970 he departed Vietnam in casual status en route to Fort Bragg, North Carolina.

15.  On 10 September 1970 he was awarded the Good Conduct Medal for the period 25 May 1967 to 24 May 1970.

16.  On 22 November 1970 he departed Fort Bragg, North Carolina, in casual status en route to Vietnam.  He participated in the Winter-Spring 1970 Campaign and the Vietnam Counteroffensive Phase VII.

17.  On 14 December 1971 he departed Vietnam in casual status en route to Fort Ord, California.

18.  On 22 November 1972 he was convicted by Special Court-Martial (SPCM) for two periods of AWOL:  27 May-4 June 1972; and, 4 August-10 October 1972. The punishment imposed consisted of 60 days extra duty and restriction (suspended). 

19.  On 14 February 1973 the applicant was arrested and confined by civilian authorities after being charged with the commission of a felony, assault with the intent to commit murder.  

20.  On 24 May 1973 the applicant was convicted in Superior Court of California, County of Monterey, of a felony, and sentenced to a state prison for a term prescribed by law.  The applicant pled nolo contendere, testifing that his offense was an accident. 

21.  On 8 June 1973 a board of officers convened to determine whether the applicant should be retained in the Army.  The board determined that the applicant should be discharged under the provisions of AR 635-206, with an Undesirable Discharge Certificate (DD Form 258A).  Accordingly on 6 August 1973 the applicant was discharged with 5 years, 1 month, and 15 days active military service. 

22.  Army Regulation 635-206, then in effect, sets forth the basic authority for the administrative separation of enlisted personnel who had committed an act or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by civil court.  

23.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

CONCLUSIONS:

1.  The applicant’s separation under the provisions of Army Regulation 635-206 was administratively correct and in conformance with applicable regulations.

2.  The overall quality of the applicant’s last period of service does not warrant an upgrade of the discharge.  However, his prior term of service, which included 1 year, 8 months, and 21 days of honorable service, to include combat service in Vietnam and the award of personal decorations for heroic actions in combat, should be considered a complete and unconditional separation. 

3.  Although the applicant was not eligible for a complete and unconditional separation on 14 February 1969, the honorable discharge issued to him for the purpose of immediate reenlistment terminated a period covering nearly 2 years of honorable service, of which more than 1 year was served in a combat area.  Further, the applicant served 3 full tours of duty in Vietnam prior to committing any acts of misconduct. 

4.  In consideration of the foregoing findings and conclusions, and in recognition of his years of good combat service, it would be unjust to consider his honorable discharge of 14 February 1969 as other than a complete and unconditional separation from the military service.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected to show that the individual concerned was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 14 February 1969.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__wtm___  ___ra___  __mvt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR199024677	
SUFFIX		
RECON		
DATE BOARDED	20000420	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730806	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	6000	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 9218		
2.  0100		
3.		
4.		
5.		
6.