PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            29 March 2001
	DOCKET NUMBER:   AR2001052201

	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. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Christopher J. Prosser		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 the upgrade of his undesirable discharge (UD) to an honorable discharge (HD) by the Army Discharge Review Board (ADRB) be affirmed.

3.  The applicant states, in effect, the upgrade of his UD to HD approved by the ADRB in 1977 requires affirmation by this Board in order for him to qualify for benefits administered by the Department of Veterans Affairs (VA).  

4.  The applicant’s counsel states, in effect, that the applicant served on active duty from 22 July 1970 until 24 August 1971, which included service in Vietnam where he earned the Combat Infantryman Badge (CIB) and the Bronze Star Medal (BSM) for achievement.  His discharge was characterized as honorable by the Department of Defense (DOD) Special Discharge Review Program and at this time affirmation of that upgrade is being requested, in order for the applicant to qualify for VA benefits.  Although the records are incomplete, the ADRB upgrade decision appears to have been influenced by the applicant’s awards and decorations, in addition, to impaired ability to serve based on his intellect.  

5.  The applicant’s military records show that on 22 July 1970 he was inducted into the Army of the United States for two years.  He successfully completed basic training at Fort Dix, New Jersey 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’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) indicates that the applicant entered the Army with an Armed Forces Qualification Test score of 19 and a general technical aptitude area test (GT) score of 78, which placed him in a aptitude category of IV.  

7.  On 6 January 1970, the applicant arrived in Vietnam and was assigned to , 198th Infantry Brigade, where he served as both a Rifleman and Machine Gunner until his departure for separation on 21 August 1971.  

8.  The applicant’s DA Form 20 confirms that during his tenure in Vietnam he was awarded the following combat related individual awards and decorations:  the CIB, based on his combat service as an Infantryman; and the BSM, for his meritorious achievement in ground operations against hostile forces.  In addition, he earned the Vietnam Service Medal and Republic of Vietnam Gallantry Cross with Palm during his tenure in Vietnam. 

9.  The separation packet and specific facts and circumstances pertaining the applicant’s discharge processing are not on file.  However, there is a properly constituted Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which was issued to and authenticated by the applicant with his signature on the date of his discharge.  

10.  The separation document confirms that on 24 August 1971, the applicant was issued an UD after completing 1 year, 1 month, and 3 days of active military service.  It also confirms that the authority for his separation was chapter 10, Army Regulation 635-200, and the reason for his discharge was for the good of the service. 

11.  On 13 June 1977, the ADRB reviewed the applicant’s case under the terms of the Department of Defense (DOD) Special Discharge Review Program (SDRP) and unanimously voted to upgrade his discharge to fully honorable.  This decision was based on there being no compelling reasons to the contrary and on the applicant’s meritorious achievement during his combat service in Vietnam, as evidenced by his earning the CIB and BSM.  

12.  A DD Form 2070 (DOD Discharge Review Program-Case Data Sheet) on file, dated 13 June 1977, reveals that the offenses on which the applicant’s discharge was based were solely discreditable acts with military authorities.  It further verifies that the offenses were not acts of violence, desertion in or from combat theater, or subject to civilian criminal prosecution.  

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.  An honorable discharge may be authorized for members separating under these provisions, although an under other than honorable conditions discharge is normally considered appropriate.

CONCLUSIONS:

1.  The Board concurs with the findings and conclusions of the 13 June 1977 SDRP review by the ADRB and affirms its decision to upgrade the applicant’s discharge to fully honorable.  

2.  After a careful review of the available evidence, and lacking any compelling reasons to the contrary, the Board finds the applicant’s meritorious combat service, as evidenced by his earning the CIB and BSM, mitigates his military related misconduct sufficiently to warrant an upgrade to his discharge. 
3.  Therefore, while not condoning the applicant’s misconduct, the Board does conclude, because his offenses included only acts of a discreditable nature toward military authorities and he did not commit any crimes against society, that it would be unjust to further deny him entitlement to veterans benefits.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that this Board affirms the 13 June 1977 decision of the ADRB, which corrected the record of the individual concerned to show he received an HD on 
24 August 1971, in lieu of the UD of the same date he originally received. 

BOARD VOTE:  

___cjp __  ____le___  ___js____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2001052201	
SUFFIX		
RECON		
DATE BOARDED	2001/03/29	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/08/24	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In Lieu of Court-Martial	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.