PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 August 2000                   
	DOCKET NUMBER:   AR2000039886

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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 bad conduct discharge be upgraded and that he be issued the Bronze Star Medal (BSM) he was awarded but never received.  

3.  The applicant states that the incident for which he received the discharge was the only serious incident he had in all the 14 years he served.  All his service was honorable, including three tours in Vietnam.  He needs medical treatment and the VA has denied his service-connection because of this discharge.  He was told that the discharge would be automatically upgraded.  He provides his Reports of Transfer or Discharge (DD Forms 214); three letters of commendation dated     30 June, 16 September and 3 December 1971; his BSM 1st oak leaf cluster orders; his VA claim; and the VA administrative decision as supporting evidence.

4.  The applicant’s military records show that he initially served in the Army from 10 August 1960 through 28 August 1968 and held military occupational specialty (MOS) 94B (Cook).  He served in Vietnam with A Battery, 1st Battalion, 92d Artillery as a cook from February 1968 until his separation.  His Personnel Qualification Record, DA Form 20, shows he received one conduct rating of “good,” one conduct rating of “fair,” and one efficiency rating of “good” during this period of service.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on three occasions for striking the charge of quarters in the face with his fist, striking an individual in the face with his fist, and absenting himself from his unit, respectively.

5.  On 4 December 1969, the applicant reenlisted in the Regular Army in MOS 94B.  He was honorably discharged on 27 February 1970 for the purpose of immediately reenlisting on 28 February 1970.  He was awarded primary MOS 13B (Field Artillery Crewman) on 18 May 1970.  He was honorably discharged again on 9 November 1970 for the purpose of immediately reenlisting on           10 November 1970.

6.  On 25 November 1970, the applicant accepted NJP under Article 15, UCMJ for wrongfully and unlawfully making a false statement under lawful oath.

7.  On 30 November 1970, the applicant accepted NJP under Article 15, UCMJ for operating a passenger vehicle while drunk and causing the vehicle to strike and damage a parked vehicle.

8.  The applicant’s DA Form 20 shows his conduct and efficiency were rated as “good” while in U. S. Army Europe from January 1970 – February 1971.  He arrived in Vietnam on or about 1 February 1971 and was assigned to B Battery, 2d Battalion, 11th Artillery as a 13B, Chief of Section.

9.  On 14 September 1971, the applicant accepted NJP under Article 15, UCMJ for striking an individual in the face with his hand.
10.  General Orders 10573, Headquarters 101st Airborne Division dated            11 November 1971 award the applicant the BSM 1st oak leaf cluster for service from January 1971 – January 1972.  Orders awarding the applicant the first award of the BSM are not available.

11.  On or about 27 December 1971, the applicant departed Vietnam.

12.  On 2 July 1974, the applicant was convicted by a general court-martial of stealing property of the U. S. Army and Air Force Exchange Service on or about 2 November 1973.  He was sentenced to receive a bad conduct discharge.

13.  On 13 August 1975, the applicant was discharged with a bad conduct discharge pursuant to his sentence by court-martial.  He had completed             13 years, 8 months and 19 days of creditable active service and had 248 days of lost time (excess leave pending appellate review).  The BSM is not listed on his DD Form 214.

14.  Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

15.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically stated that no factors should be established which would require automatic change or denial of a change in discharge.

CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The Board notes that the incident for which the applicant was court-martialed was not the only serious incident in which the applicant was involved during his 14 years of service.  He had received nonjudicial punishment under Article 15 on three occasions for assault.  In addition, he received nonjudicial punishment under Article 15 on three occasions (including one for assault) during his last period of service.  

4.  The Board notes that the applicant’s award of the BSM 1st oak leaf cluster was for service, not for heroism.  The Board concludes that the award is insufficiently mitigating to grant the relief requested.  However, the award should be listed on his DD Form 214.  Although orders for the first award of the BSM are not available, any doubt should be resolved in favor of the applicant and his DD Form 214 should show he was awarded the BSM 1st oak leaf cluster.

5.  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 amending the applicant’s DD Form 214 for the period ending         13 August 1975 to show he was awarded the Bronze Star Medal 1st oak leaf cluster and by issuing the medal and oak leaf cluster to him.

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

BOARD VOTE:  

__mdm___  ___js___  __kah___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039886	
SUFFIX		
RECON		
DATE BOARDED	20000810	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.	110.04	
3.		
4.		
5.		
6.