PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            5 March 2002
	DOCKET NUMBER:   AR2001063178

	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. Fred N. Eichorn		Chairperson	
	Mr. Thomas b. Redfern, III		Member	
	Mr. Donald P. Hupman, Jr.		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).   

3.  The applicant states, in effect, that prior to entering the Army, he was an average student, but he was not able to play sports or join any activities in school because his father was a strict man, so he followed the rules to the letter and was never involved in any unlawful incidents.  After being drafted, he completed basic training and advanced individual training (AIT) without any problem.  Upon completion of training, he was assigned to the Republic of Vietnam (RVN), where he served for 5 months and 23 days before being wounded in action.  He was medically evacuated to the United States and received a Purple Heart and Combat Infantryman Badge.  After his hospitalization, he was assigned to Fort Leonard Wood, Missouri, where he worked as a driver and received a letter of appreciation from the Inspector General.  While there, he got in with the wrong crowd and began to drink and party hard.  He trusted two guys and on occasion loaned them his car.  Once they borrowed his car and the next day he found a lot of stuff in it.  His friends said it was stolen and they did not have time to get rid of it, but they would.  

4.  The applicant claims that about a week later, he and another friend were in his car at a drive-in hamburger stand and were detained and questioned by the Military Police (MP).  They were interrogated all night and after conducting a search of the car, the MP’s discovered the stolen goods that were still in his car.  He was arrested and given a letter to sign by one of the MPs.  He signed without reading it because he though it would get him out of there.  However, it was a confession and he remained in confinement for about a month.  While confined, he was only allowed to see his company commander and his court appointed lawyer.  Each time he attempted to explain to his commander that he had not stolen the items in question, where the stolen goods came from, and who was responsible, he was ignored.  The commander would not listen because he had already made up his mind that he was the one who stole the items and believed the applicant was only trying to point the finger at someone else. 

5.  The applicant also claims that he talked to his lawyer and told him all the details, but the lawyer decided not to pursue it.  His lawyer thought it would be better for him to accept a deal he and the commander had agreed upon, which was that he request discharge, in lieu of going to jail.  His lawyer explained that his case could drag out in court and that time would not count for time in service. In addition, he was told he could get a general, under honorable conditions discharge (GD), but when the time came he was given an UD, and he decided to accept it to get it over with.  

6.  The applicant states that since his discharge he has no criminal record and he has not been in any trouble.  He worked on the farm for a few months, then went to work at Rowe Furniture for 8 years.  He later opened two businesses and is still self-employed.  He states that he knows he made a bad decision, but he was only 19 years old at the time and was not street smart.  He feels he was a good soldier and that one incident has caused his military time to be in vain and this has impacted him mentally for the past 30 years.  He further claims that he is proud to have served and that he continues to work with a deformed finger that is still tender, for which he cannot receive help from the Department of Veterans Affairs (VA).  He concludes that whatever one thinks about his guilt or innocence, his discharge was too harsh for the small time burglary he did not commit.  He requests that his discharge be upgraded because he has suffered enough disgrace and shame.  In support of his application, he provides a letter from his county sheriff and a copy of his Missouri driving record that confirm he has no criminal record in his county and no driving violations.  In addition, he provides a third party statement from a friend, who is a police officer for the VA, attesting to his good character.

7.  The applicant’s counsel requested that appropriate action be taken and that they be notified when the applicant’s records were assembled and ready for review.  On 18 January 2002, the Board staff notified counsel that the applicant’s case and record were available for review; however, to date counsel has failed to review the file or to respond to the notification.  

8.  The applicant’s military records show that he was inducted into the Army of the United States and entered active duty on 13 March 1968.  He successfully completed basic training and AIT, at which time he was awarded military occupational specialty 11B (Infantryman) and assigned to the RVN for his first permanent duty station.  

9.  The applicant’s Enlisted Qualification Record (DA Form 20) confirms that on 15 December 1968, he was promoted to the rank of specialist four (SP4), the highest rank he held on active duty.  It also verifies that he served in the RVN for almost 6 months, from 12 August 1968 through 4 February 1969, and Item 40 (Wounds) confirms that on 21 January 1969, he received a fragmentation wound to the right hand and ear and as a result was medically evacuated to the United States. 

10.  The DA Form 20 also shows that he remained in a patient status until 
30 April 1969, at which time he was reassigned to Fort Leonard Wood, Missouri, where he served until being undesirably discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial on 20 March 1970.  

11.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of General Orders Number 17, dated 25 January 1969, issued by Headquarters, 
71st Evacuation Hospital, RVN, which awarded the applicant the Purple Heart for being wounded in action in the RVN on 21 January 1969.

12.  The applicant’s discharge packet containing the specific facts and circumstances surrounding his discharge processing was not available to the Board for review.  However, the record does contain a properly constituted separation document (DD Form 214) that was issued to and authenticated by the applicant on the date of his discharge and identifies the reason and characterization of his discharge.  

13.  The DD Form 214 also confirms that the applicant was released from active duty on 20 March 1970, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial, with an UD.  In addition, it shows that he was reduced from the rank of SP4 to private/E-1 (PV1) in conjunction with his discharge and it verifies that as of the date of his separation, he had completed a total of 2 years and 8 days of active military service.

14.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows that during his active duty tenure, he earned the following awards:  National Defense Service Medal; Vietnam Service Medal; Combat Infantryman Badge; Republic of Vietnam Campaign Medal with 60 Device; 1 Overseas Bar; and Sharpshooter Marksmanship Badge (Rifle).  The Purple Heart is not included in this list of earned awards.  

15.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) requesting an upgrade to his discharge within its 15 year statute of limitations.  

16.  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 UD.

17.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) provides guidance on determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that the applicant’s unit, Company D, 1st Battalion, 35th Infantry Regiment, earned the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during his assignment tenure and that he participated in two campaigns while serving in the RVN, which entitles him to 2 bronze service stars for his Vietnam Service Medal. 

CONCLUSIONS:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events that led to a discharge from the Army.  The Board notes that his record does contain a properly constituted DD Form 214 that was authenticated by the applicant.  This document identifies the reason and characterization of the discharge and the Board presumes Government regularity in the applicant’s discharge process.

2.  The evidence of record also shows that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service/in lieu of trial by court-martial, and the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Although the Board finds the applicant’s discharge was proper and equitable at the time, after considering his entire record of service, including his combat service in the RVN, which resulted in his being awarded the CIB and Purple Heart, and his excellent post service conduct; the Board concludes that he has been sufficiently penalized for his misconduct and that it would be appropriate to upgrade his discharge at this time.

4.  However, while deserving of a discharge upgrade, the applicant’s misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  Therefore, the Board concludes that an upgrade of his discharge to fully honorable is not warranted and that it should only be upgraded to a general, under honorable conditions discharge at this time. 

5.  Further, the Board notes that the applicant was awarded the Purple Heart as a result of being wounded in action in the RVN on 21 January 1969; however, this award was erroneously omitted from his separation document.  Therefore, it concludes it would also be appropriate to add the PH to his separation document at this time. 

6.  In addition, based on his unit service in the RVN, the applicant is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  In addition, based on his participation in two campaigns during his tour in the RVN, he is entitled to 2 bronze service stars for his Vietnam Service Medal.  

7.  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 the individual concerned received a general, under honorable conditions discharge on 20 March 1970, in lieu of the UD of the same date he now holds, and that his rank is restored to specialist four/E-4; by showing he earned the Purple Heart, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and 2 bronze service stars for his Vietnam Service Medal; and by providing him a corrected separation document that reflects these changes.  

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

BOARD VOTE:  

__FNE__   _ _TBR__  __DPH     GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		          __Fred N. Eichorn__
		             CHAIRPERSON

INDEX

CASE ID	AR2001063178	
SUFFIX		
RECON		
DATE BOARDED	2002/03/05	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/03/20	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In lieu of Court-Martial	
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.  46	107.0000	
3.		
4.		
5.		
6.