PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 July 2000
	DOCKET NUMBER:   AR2000038122

	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.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchanon		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) or a general, under honorable conditions discharge (GD).

3.  The applicant states, in effect, that he should have gotten a good discharge based on his combat service in Vietnam.  

4.  Counsel states, in effect, that the applicant’s discharge is inequitable because he had completed one year of combat service in Vietnam and while there he was awarded the Combat Infantryman Badge (CIB) and the Purple Heart Medal (PH). They further contend that the applicant has suffered the effects of his bad discharge for 25 years and any further punishment would appear to be excessive. 

5.  The applicant’s military records show that on 2 November 1967 he was inducted into the Army of the United States for 2 years.  He successfully completed basic training at Fort Campbell, Kentucky and advanced individual training (AIT) at Fort Polk, Louisiana.  Upon completion of AIT he was awarded military occupational specialty 11B (Infantryman) and he was assigned to combat duty in Vietnam for his first permanent duty station. 

6.  The applicant arrived in Vietnam in April 1968 and served with Company D of the 51st Infantry Regiment as an assistant machine gunner and a grenadier.  He completed his tour in Vietnam in April 1969 and was reassigned to Fort Hood, Texas, where he arrived on 15 May 1969.

7.  The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) shows, in Block 33 (Appointments and Reductions), that the highest rank he held while on active duty was specialist/E-4 (SP4) which he attained on 
14 December 1968.  Block 41 (Awards and Decorations) shows that the applicant earned the National Defense Service Medal (NDSM); the Vietnam Service Medal (VSM); the CIB; the Republic of Vietnam Campaign Medal (RVNCM) with 60 device; and 2 Overseas (O/S) Bars.

8.  The evidence or record includes a Casualty Report Message, dated 
12 November 1968, and an accompanying Western Union Telegram, dated 
13 November 1968, pertaining to the applicant.  These documents verify that he received a fragment wound to the left shoulder on 10 November 1968, as a result of hostile action.  This resulted in his being awarded the PH via Orders Number 11976, dated 14 November 1968, issued by Headquarters 1st Infantry Division, APO San Francisco 96345.

9.  The applicant had an extensive history of AWOL related misconduct, totaling 205 days of time lost prior to his normal expiration of term of service (ETS), which was 1 November 1969.  Of the 205 days of time lost during his enlistment, 76 days were as a result of his being AWOL and 129 days were based on periods of military confinement.  He also had 1558 days of time lost subsequent to his normal ETS.  This AWOL period, which resulted in the applicant being processed for separation, began on 11 March 1970 when he departed AWOL from his unit at Fort Carson, Colorado.  The period ended on 15 June 1974 when he was returned to military control at Fort Campbell, Kentucky.

10.  On 24 June 1974, a Department of Defense (DD) Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for being AWOL from 11 March 1970 to 15 June 1974.  On 25 June 1974, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, and of the possible effects of an UD.  He then voluntarily requested discharge for the good of the service, under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  In connection with his discharge request he provided a statement that his AWOL was related to the fact that he was responsible for his wife and child and they needed him at home to care for them.

11.  On 1 July 1974, the appropriate authority approved the applicant’s request for separation and directed that he receive an UD.  Accordingly, on 16 July 1974 the applicant was discharged after completing 1 year, 10 months, and 17 days of creditable active military service and having accrued a total of 205 days of time lost during his enlistment. 

12.  The record contains a DD Form 214 (Report of Separation) which was issued to the applicant on the date of his discharge.  Block 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons, Awarded or Authorized) of this document indicates that awards data was not available at the time the applicant’s separation documents were prepared and issued.  

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

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an under other than honorable conditions is normally considered appropriate, an honorable or general discharge is authorized.  At the time of the applicant’s separation the regulation provided for the issuance of an UD.
15.  On 4 April 1977 the Department of Defense (DOD) directed the Military Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Special Discharge Review Program (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  It also allowed for the consideration of other factors, including personal problems, that may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

CONCLUSIONS:

1.  The evidence or record establishes that the applicant was awarded the PH for wounds he received on 10 November 1968 and that the DD Form 214 issued to him at discharge did not include the PH or any of the awards he had earned during his tenure on active duty.  Therefore, the Board determined that it would be appropriate to add these authorized awards to the applicant’s DD Form 214 at this time.  

2.  The applicant requested an administrative discharge in order to avoid a trial by court-martial and the punitive discharge which may have resulted.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process; therefore, the discharge received by the applicant was proper and equitable at the time it was issued. 

3.  Based on his discharge date, the applicant did not qualify to have his discharge reviewed by the SDRB.  This DOD directive required the Military Service Departments to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  Given his discharge date was 16 July 1974, he was obviously outside the window of consideration by the SDRB.  

4.  However, the Board found that all the other aspects of this case fell within the criteria established by DOD for discharge review and upgrade by the SDRB.  The applicant had clearly completed a tour of duty in Vietnam and had earned both the CIB and the PH.  In addition, he raised other mitigating issues of consideration by citing family and marital problems as factors contributing to his AWOL related misconduct.  Further, it appears that his conduct subsequent to his discharge has been good.  
5.  Given the facts outlined in the preceding paragraph, the Board concluded it would be appropriate to apply the sprit of the DOD directive for SDRB review and upgrade in this case.  The intent of DOD was for the Military Services to recognize prior honorable combat service as a compelling mitigating factor in the SDRB discharge review process, and to liberally apply mitigating standards to other factors presented by an applicant in requesting a discharge upgrade.  The Board found that, other than not falling within the established discharge date window, the applicant meets all the necessary criteria necessary for a discharge upgrade under the SDRB process.

6.  The Board felt, even when applying SDRB upgrade standards, that an upgrade to a fully honorable discharge was not warranted in this case.  The applicant’s extensive AWOL related misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge, even when applying SDRB criteria and giving full consideration to his prior combat service.  

7.  However, the Board did conclude, in applying the spirit of the SDRB process by giving full consideration and recognition to the applicant’s honorable combat service and taking into account that he has suffered the effects of his bad discharge for over 25 years, that clemency was in order.  Therefore, in the interest of equity and compassion, the Board determined that it would be appropriate to upgrade the applicant’s discharge to a GD at this time. 

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned received a GD on 16 July 1974, in lieu of the UD of the same date he now holds.  

2.  That the separation document (DD Form 214) issued to the individual concerned be corrected to add all the authorized awards and decorations he earned, which includes the PH, the CIB, the NDSM; the VSM; the RVNCM with 60 device; and 2 Overseas (O/S) Bars.

BOARD VOTE:  

__gp____  __mvt___  ___eb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____George D. Paxson_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000038122	
SUFFIX		
RECON		
DATE BOARDED	20000/07/18	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/07/16	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	Good of the Service-In Lieu of Court-Martial	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.  61	107.0015	
3.		
4.		
5.		
6.