PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            1 February 2001                  
	DOCKET NUMBER:   AR2000044733

	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. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz 		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, in effect, that he did not hesitate to answer the call to military service; that while he was overseas, his wife and parents began to experience a multitude of problems; and that he was trying to assist his wife and parents in solving their problems.  The applicant submitted several documents in support of his request for an upgrade of his discharge.

4.  The applicant’s military records show that on 17 March 1970, he was inducted into the Army of the United States for 2 years.  Following basic combat training at Fort Dix, New Jersey and advance individual training at Fort Polk, Louisiana, the applicant was awarded military occupational specialty 11B, Infantryman.

5.  On 7 August 1970, the applicant was enrolled as a student at the Noncommissioned Officer (NCO) Candidate School, Fort Benning, Georgia.  On 16 September 1970, the applicant was released from the NCO school and assigned to Headquarters and Headquarters Company, The Candidate Brigade, United States Army Infantry School, Fort Benning, Georgia.

6.  On 5 October 1970, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty (kitchen police).  His punishment consisted of forfeiture of $15.00 pay for 1 month.

7.  On 8 October 1970, the applicant was ordered to Fort Lewis Washington, to the Overseas Replacement Station for transfer to the Republic of Vietnam.

8.  On 10 December 1970, the applicant was found guilty by a summary court-martial of being absent without leave (AWOL) from 5 November to 7 December 1970.  He was sentenced to forfeiture of $62.00 pay for 1 month and reduction in grade to private/E-1.

9.  On 18 December 1970, the applicant was sent to the Republic of Vietnam where he served honorably until 6 August 1971, was promoted from private/E-1 to specialist/E-4 and was awarded the Combat Infantryman Badge by Special Order Number 74, dated 26 March 1971.  Unfortunately, he went AWOL while on ordinary leave and was absent from 22 August 1971 to 9 April 1972.

10.  The applicant was charged with 232 days of AWOL.  After being advised by counsel, the applicant requested discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  He submitted a statement in his own behalf admitting to being AWOL and acknowledged that he understood he would loose all of his benefits.  He stated that he had family problems at home.  His mother and father owned a farm; however, they were not able to take care of themselves and the farm.  Also, his wife had lost her job and was not able to take care of herself.  The applicant stated that his first AWOL prior to going to Vietnam was also due to family problems.

11.  The unit and intermediate commanders recommended approval of the chapter 10.  The unit commander also noted that during the 7 months the applicant was in Vietnam, his conduct and efficiency were such that he received successive promotions from private/E-1 to specialist/E-4.  He further stated that the applicant was faced with problems at home that were not likely to improve without his presence.

12.  The appropriate authority approved the applicant’s request for discharge.  Accordingly, the applicant was discharged on 10 May 1972 after completing 1 year, 5 months, and 10 days of military service with a UD. 

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

14.  Chapter 3 of Army Regulation 635-200 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.  On 14 May 2000, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, it was beyond its 15-year statue of limitations and the applicant was referred to the Army Board for Correction of Military Records.  

17.  Army Regulation 600-8-22 provides, in pertinent part, that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, and 2 August 1990 through 30 November 1995.

18.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Service Medal (VSM).  This 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.

19.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Campaign Medal (VCM).  The Government of Vietnam awarded this medal to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or service outside the geographical limits of the Republic of Vietnam that contributed direct combat support to the Republic of Vietnam and its Armed Forces.  Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due wounds resulting from hostile action were entitled to award of the Vietnam Campaign Medal.

20.  Army Regulation 600-8-22 (Military Awards), in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.  The applicant served in Vietnam during the following campaigns:  Vietnam Counteroffensive, Phase VII, 1 July 1970--30 June 1971

21.  Army Regulation 670-1, in effect at the time, governs the requirements for the Oversea Service Bar (OSB).  In pertinent part, it provides that a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States.  There are special provisions regarding authorization for the Overseas Service Bar for service in a hostile fire zone and for combining service to calculate award of the bars.  For Vietnam service, one overseas service bar is authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973.  Both the month of arrival and the month of departure from Vietnam are counted as a whole months for credit toward the overseas service bar.

CONCLUSIONS:

1.  The evidence of record confirms the applicant was awarded the Combat Infantryman Badge and that he met the requirements for award of the National Defense Service Medal, 1 Overseas Service Bar, and 1 Bronze Service Star for his Vietnam Service Medal; however, these awards are not listed on his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge.

2.  The applicant 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’s discharge under the SDRP, it is reasonable to presume that his discharge would have been upgraded to a general, under honorable conditions discharge.

3.  After carefully reviewing the applicant’s record and considering the misconduct (AWOL) committed by him, the Board concluded that the applicant’s misconduct was mitigated by his 7-month honorable tour of duty in Vietnam, family problems, and good post service citizenship.  While the Board does not condone the applicant’s misconduct, it is apparent that the circumstances of the applicant’s home life were the driving force for his misconduct.  It is evident by the applicant’s post service conduct that he has worked hard to turn things around and that these mitigating factors warrant an upgrade of his discharge.

4.  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:

a.  Voiding the Undesirable Discharge, date 10 May 1972, now held by the individual concerned and by issuing to him a General, Under Honorable Conditions Discharge, dated 10 May 1972;

	b.  Adding the National Defense Service Medal, Vietnam Service Medal w/ one (1) Bronze Service Star, Vietnam Campaign Medal, Combat Infantryman Badge, and one (1) Overseas Service Bar; and 

	c.  Issuing a new DD Form 214 with the above corrections.

BOARD VOTE:  

__lls____  __jea____  __bjl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Luther L. Santiful____
		        CHAIRPERSON

INDEX

CASE ID	AR2000044733	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720510	
DISCHARGE AUTHORITY	AR 635-200, C10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	110.0189	
2.		
3.		
4.		
5.		
6.