PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           19 December 2000
	DOCKET NUMBER:   AR2000041975

	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	
	Ms. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Kenneth L. Wright 		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 that his undesirable discharge (UD) be upgraded.

3.  The applicant states that he served his country and fought in Vietnam.  He believes that his military record is sufficiently meritorious to warrant an honorable characterization of service.  He adds that he received one Article 15 for missing bed check and that his lengthy period of absence without leave (AWOL) was almost all subsequent to his ETS (expiration of term of service) date.

4.  The applicant’s military records show that he was inducted into the Army of the United States for 2 years on 29 November 1967, giving him an ETS date of 28 November 1969.  After completing basic combat training at Fort Bragg, North Carolina, he was assigned to Fort Polk, Louisiana for advanced individual training (AIT).  He completed AIT and was awarded military occupational specialty (MOS) 11B (Light Weapon Infantryman).

5.  On 19 April 1968, the applicant received orders assigning him to the Republic of Vietnam and he served there from 16 May 1968 to 8 March 1969 as a member of Company C, 2nd Battalion, 22nd Infantry Division.  On 29 January 1969, he was wounded as a result of hostile action and was hospitalized for his injuries.  On 6 March 1969, the applicant departed the Republic of Vietnam enroute to Fort Carson, Colorado, where he reported for duty on 14 April 1969.

6.  The applicant's record shows that he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Service, for missing bed check.

7.  On 1 November 1969, the applicant departed his unit in an AWOL status and remained absent until he surrendered to military authorities on 16 November 1969.  Court-martial charges were preferred against him and, on 25 November 1969, while awaiting trial by court-martial for his previous AWOL, he again departed in an AWOL status.  On 26 November 1969, he was dropped from his unit's rolls as a deserter.  He was AWOL on his ETS date of 28 November 1969.

8.  On 8 November 1971, the applicant was apprehended by civil authorities, returned to military control, and placed in pre-trial confinement in the post stockade at Fort George G. Meade, Maryland.  On 22 November 1971, the applicant was charged with 2 specifications of AWOL (1-15 November 1969 and 25 November 1969 to 7 November 1971).  On 13 December 1971, after consulting with legal counsel concerning his rights, the applicant requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 in lieu of trial by court-martial.  The unit and intermediate commanders recommended approval of the request with a UD.

9.  On 20 January 1972, the appropriate authority approved the applicant’s request for discharge with a UD.  Accordingly, the applicant was discharge from military service after completing 1 year and 11 months of creditable military service and accruing 20 days of lost time prior to ETS and 782 days of lost time subsequent to normal ETS.  He was credited with award of the National Defense Service Medal, Vietnam Campaign Medal w/60 Device, Vietnam Service Medal, Combat Infantryman Badge, one Overseas Bar, and the Sharpshooter Badge
(M-14 Rifle).

10.  Army Pamphlet 672-3 lists the time periods for which various units were awarded unit citations.  The organization to which the applicant was assigned in Vietnam was awarded the Republic of Vietnam Gallantry Cross w/Palm and the Republic of Vietnam Civil Actions Honor Medal during the period of his assignment.  It also reflects that the applicant served in Vietnam during the following campaigns: Vietnam Counteroffensive, Phase IV, 2 April 1968--30 June 1968; Vietnam Counteroffensive, Phase V, 1 July 1968--1 November 1968; Vietnam Counteroffensive, Phase VI, 2 November 1968--22 February 1969; and TET 69 Counteroffensive, 23 February 1969--8 June 1969.

11.  General Order Number 26, dated 29 January 1969, awarded the applicant the Purple Heart for wounds sustained as a result of hostile action on 29 January 1969.

12.  Special Order Number 3999, dated 29 January 1969, awarded the applicant the Army Commendation Medal for meritorious service while participating in a military operation involving hostile action against the enemy during the May 1968 to May 1969 time period.

13.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 of that regulation provides, in effect, that the characterization of service will be based upon the overall quality of the soldier’s service.  The quality of the service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the awarding of an honorable discharge.  An honorable discharge may be awarded when, in effect, the applicant’s misconduct is outweighed by prior honorable service.

15.  On 4 April 1977, the DOD implemented the Special Discharge Review Program, or SDRP, whereby the military services reviewed all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, the program mandated a discharge upgrade to either honorable or general for any individual who:  had completed a normal tour of duty in Southeast Asia; had been wounded in action; had been awarded a military decoration other than a service medal; had received an honorable discharge from a previous period of service, or had a satisfactory record of military service at least 24 months prior to discharge.  Other factors in consideration of a discharge upgrade included possible personal problems which may have contributed to the acts which led to the discharge, as well as a record of good post-service citizenship since the time of discharge.

16.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge, or that the Army ever reviewed the applicant's discharge under the SDRP.

CONCLUSIONS:

1.  The applicant qualified for award of the Purple Heart, Army Commendation Medal, Republic of Vietnam Gallantry Cross w/Palm, Republic of Vietnam Civil Actions Honor Medal, and 4 Bronze Service Stars for his Vietnam Service Medal, but they are not listed on his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge.

2.  The applicant also qualified for a review of his UD under the provisions of the SDRP, but there is no record of that review having taken place.  Had the ADRB reviewed the applicant under the SDRP, it is reasonable to presume that his discharge would have been upgraded to a general, under honorable conditions discharge, or a fully honorable discharge based upon several criteria of this program (tour of duty in Southeast Asia, wounded in action, and receipt of an Army Commendation Medal).

3.  The Board notes that the applicant received one NJP for the minor military infraction of missing a bed check.  His most serious offense was that of being AWOL, but even that is mitigated by the fact that he served honorably and well for 23 of his 24-month service obligation.  Although he had 802 days of lost time, 782 days were subsequent to his normal ETS; only 20 days of AWOL occurred prior to ETS, and then only in the last month of his service obligation.

4.  After carefully reviewing the applicant’s records and considering the misconduct committed by him, the Board concluded that the applicant’s misconduct was an aberration in an otherwise noteworthy record.  He served honorably during wartime, was wounded, and was awarded a Purple Heart, an Army Commendation Medal for meritorious service, and a Combat Infantryman Badge.  While the Board does not condone the applicant’s misconduct, it noted the majority of the misconduct occurred after ETS.  The Board determined that the applicant’s characterization of service is inequitable and unjust, and is not appropriate to the overall service rendered by the applicant. 

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 voiding the Undesirable Discharge, dated 20 January 1972, now held by the individual concerned and by issuing to him an Honorable Discharge, dated 20 January 1972.

2.  That the individual concerned be issued a new DD Form 214 showing that he was awarded the Purple Heart, the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal with 4 Bronze Service Stars, the Vietnam Campaign Medal with 60 Device, the Republic of Vietnam Gallantry Cross with Palm, the Republic of Vietnam Civil Actions Honor Medal, the Combat Infantryman Badge, the Sharpshooter Badge (M-14 Rifle), and one Overseas Bar.

BOARD VOTE:  

_jph   ___  __rjw ___  _klw ____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    __James P. Huber___
		        CHAIRPERSON

INDEX

CASE ID	AR2000041975	
SUFFIX		
RECON		
DATE BOARDED	20001219	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720120	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	A71.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	110.0000	
2.	107.0015	
3.	107.0020	
4.	107.0073	
5.	107.0094	
6.	107.0111