IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150004792 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show all of his authorized awards and upgrade of his general, under honorable conditions discharge. 2. The applicant states that he served in the Republic of Vietnam (RVN) from 15 July 1970 to 16 July 1971. He was awarded the Purple Heart, Air Medal, Bronze Star Medal, the BSM with "V" Device, and Combat Infantryman Badge. However, the awards are not listed on his DD Form 214. He also states that his discharge should be upgraded to honorable because he was separated due to family hardship. 3. The applicant provides copies of three general orders (GOs) that awarded him the PH, BSM w/V, and AM; a BSM certificate; and his DD Form 214. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. A National Archive and Records Administration Form 13038 (Certification of Military Service) shows the applicant had honorable service in the U.S. Marine Corps from 7 May 1968 to 7 November 1969. [During this period of service he served in the RVN from October 1968 to October 1969.] 3. The applicant enlisted in the Regular Army (RA) on 25 February 1970 for a period of 3 years. He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 4. A DD Form 214 shows the applicant was honorably discharged on 26 May 1970 to reenlist in the RA. He had completed 3 months and 2 days of net active service during this period. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the: * National Defense Service Medal * RVN Campaign Medal * RVN Gallantry Cross with Palm Unit Citation * Combat Action Ribbon * Vietnam Service Medal with 1 Bronze Service Star * Good Conduct Medal 5. The applicant reenlisted in the RA on 27 May 1970 for a period of 4 years. He was promoted to specialist four (SPC)/pay grade E-4 on 3 September 1971. 6. His DA Form 20 (Enlisted Qualification Record) shows in: * item 31 (Foreign Service): * Vietnam from October 1968 to October 1969 * Hawaii from 3 May 1970 through 9 July 1970 * Vietnam from 15 July 1970 through 16 July 1971 * item 38 (Record of Assignments): * Company B, 1st Battalion, 61st Infantry, 1st Brigade, 5th Infantry Division, from 3 August 1970 through 30 October 1970 * Company P (Ranger), 75th Infantry, 1st Brigade, 5th Infantry Division, from 31 October through 5 December 1970 * Company B, 1st Battalion, 61st Infantry, 1st Brigade, 5th Infantry Division (Mechanized), from 6 December through 22 December 1970 * Company P (Ranger), 75th Infantry, 1st Brigade, 5th Infantry Division (Mechanized), from 23 through 26 December 1970 * casual status, enroute to the continental United States (CONUS) on 27 December 1970 (emergency leave through 26 January 1971) * attached to Company E, Troop Command, U.S. Army Personnel Center, Fort Jackson, SC, from 27 January through 23 February 1971 * casual status, enroute to the RVN from 24 to 28 February 1971 * Company C, 1st Battalion, 61st Infantry, 1st Brigade, 5th Infantry Division (Mechanized), from 28 February through 15 July 1971 * casual status, enroute to CONUS on 16 July (leave through 22 August 1971) * Headquarters and Headquarters Detachment (HHD), 12th Battalion, 3rd Advanced Individual Training (AIT) Brigade, Fort Jackson, SC, from 23 August 1971 through 25 June 1972 * item 41 (Awards and Decorations): * National Defense Service Medal * RVN Campaign Medal with Device (1960) * RVN Gallantry Cross with Palm Unit Citation * Combat Action Ribbon * Vietnam Service Medal with 1 Bronze Service Star * Good Conduct Medal * Combat Infantryman Badge * Purple Heart * Bronze Star Medal with "V" Device * 4 Overseas Service Bars * Air Medal 7. Headquarters, 1st Infantry Brigade, 5th Infantry Division (Mechanized), Camp Red Devil, RVN, Special Orders Number 276, dated 3 October 1970, awarded the applicant the Combat Infantryman Badge. 8. General orders (GOs) issued by Headquarters, 1st Infantry Brigade, 5th Infantry Division (Mechanized), Camp Red Devil, RVN, announced the applicant's awards, as follows: * GO Number 474, dated 17 April 1971, the Purple Heart for wounds received in action on 28 March 1971 * GO Number 596, dated 4 May 1971, the Bronze Star Medal with "V" Device for heroism on 28 March 1971 * GO Number 813, dated 24 May 1971, the Air Medal for meritorious achievement from 5 September 1970 to 5 May 1971 * GO Number 1147, dated 26 June 1971, the Bronze Star Medal for meritorious service from July 1970 to July 1971 9. The applicant accepted nonjudicial punishment (NJP) on three occasions for: * being derelict in duty as platoon guide on 5 February 1971 * failing to report for duty as charge of quarters on 2 October 1971 and being absent from his place of duty on 3 October 1971 * being absent without leave from 3 March 1972 to 30 March 1972 10. He was reduced in rank/pay grade as follows: * to private first class (E-3) on 6 October 1971 * to private (E-1) on 20 April 1972 11. On an unspecified date, the unit commander notified the applicant that he was recommending him for separation under the provisions of Army Regulation (AR) 635-212 (Personnel Separations - Discharge – Unfitness and Unsuitability) for unfitness because of frequent incidents of a discreditable nature against military authority. The applicant was advised of his rights. The commander also informed him that he was recommending a general, under honorable conditions discharge. 12. On 13 June 1972, the applicant consulted with legal counsel and acknowledged he was advised of the basis for the contemplated separation action under the provisions of Army Regulation 635-212 for unfitness. a. He was advised that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him. b. He was also advised that as a result of issuance of an undesirable discharge under conditions other than honorable, he may be deprived of many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under conditions other than honorable. c. The applicant waived consideration of his case by a board of officers; waived personal appearance before a board of officers; waived representation by counsel; and elected not to submit statements in his own behalf. d. The applicant and his counsel placed their signatures on the document. 13. On 14 June 1972, the commander recommended approval of the proposed separation action with the issuance of a General Discharge Certificate. The administrative separation action shows it contained a Report of Psychiatric Examination and a Report of Medical Examination. 14. On 22 June 1972, the separation authority approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-212 with a General Discharge Certificate. 15 The applicant's DD Form 214 shows he entered active duty this period on 27 May 1970 and he was discharged under the provisions of Army Regulation 635-212 with a general, under honorable conditions discharge on 26 June 1972. a. He had completed 1 year, 11 months, and 28 days of net active duty service this period; 1 year, 10 months, and 23 days of other service; 3 years, 5 months, and 29 days of total active service; and 3 years, 10 months, and 21 days of total service. b. It also shows in: * item 24: National Defense Service Medal * item 26a (Non-Pay Periods Time Lost): * 3 March 1972 through 29 March 1972 * 11 May 1972 through 11 May 1972 * 2 June 1972 through 5 June 1972 16. A review of his military personnel records failed to reveal any evidence that he applied to the Department of Defense Discharge Review Program (Special) or Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. 17. A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam-era between 1965 and 1973 maintained by the U.S. Army Human Resources Command, Awards and Decorations Branch, failed to reveal any additional award orders pertaining to the applicant. 18. A review of the applicant's military personnel records reveals he may be entitled to additional awards that are not shown on his DD Form 214. 19. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam. a. It shows that during the applicant's assignment to the 1st Battalion, 61st Infantry, the unit was cited for award of the: * RVN Civil Actions Honor Medal First Class Unit Citation for the period 30 and 31 October 1970 by Department of the Army General Orders (DAGO) Number 24, 1972 * RVN Gallantry Cross with Palm Unit Citation for the period 8 February 1971 through 30 April 1971 by DAGO Number 42, 1972 b. Paragraph 6 of the pamphlet states that not more than one RVN Gallantry Cross Unit Citation will be worn by any individual. Although multiple awards of this unit citation are not authorized for wear, official military and historical records will indicate all awards received. 20. Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations. a. The Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party. A bronze oak leaf cluster is awarded to denote the second and each succeeding award of the Bronze Star Medal. b. The Vietnam Service Medal (VSM) 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. A bronze service star will be awarded for wear on the VSM for participation in each credited campaign. c. Appendix B contains a list of Vietnam Conflict campaigns. During the applicant's service in Vietnam with the U.S. Army, participation credit was awarded for the following campaigns: * Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971) * Consolidation I (1 July - 30 November 1971) 21. Army Regulation 635-212, in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness based on frequent incidents of a discreditable nature with civil or military authorities. It provides that when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 22. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 23. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents. It also establishes standardized policy for preparing and distributing the DD Form 214. a. The purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation. Therefore, it is important the information entered thereon is complete and accurate as of that date. b. Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214. It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders. It shows for item 24, list all decorations, service medals, campaign medals, and badges awarded or authorized, omitting authorities cited therein. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his 26 June 1972 DD Form 214 should be corrected to show all of his awards and upgrade of his general, under honorable conditions discharge based on family problems. 2. The evidence of record shows a DD Form 214 documents the applicant's honorable period of active duty in the RA from 25 February 1970 through 26 May 1970. It also shows he was awarded the: * Good Conduct Medal * National Defense Service Medal * Vietnam Service Medal with 1 Bronze Service Star * RVN Campaign Medal with Device (1960) * RVN Gallantry Cross with Palm Unit Citation * Combat Action Ribbon 3. The applicant reenlisted in the RA on 27 May 1970 and: a. GOs awarded him the: * Purple Heart * Bronze Star Medal with "V" Device * Bronze Star Medal (1st Oak Leaf Cluster) * Air Medal b. SOs awarded him the Combat Infantryman Badge; c. the applicant qualified for award of the VSM with one bronze service star for campaign participation during his service in Vietnam with the U.S. Marine Corps and two campaigns during his service in Vietnam with the U.S. Army. Thus, he is authorized three bronze service stars for wear on his already-awarded VSM; and d. DAGOs awarded the applicant's unit the: * RVN Gallantry Cross with Palm Unit Citation (2nd Award) * RVN Civil Actions Honor Medal First Class Unit Citation 4. The evidence of record shows the applicant was serving in the RVN when he departed on 27 December 1970 in an emergency leave status to return to CONUS. He was subsequently attached to a unit at Fort Jackson, SC, through 23 February 1971, when he returned to the RVN. Based on the available evidence, it is reasonable to conclude that an informed decision was made that the applicant's family situation/problem was resolved to the extent that he could return to his unit in the RVN. 5. The applicant's separation under the provisions of Army Regulation 635-212 for unfitness was proper and administratively correct. All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process. In addition, the characterization of service directed was appropriate and equitable. 6. The evidence of record shows the applicant was repeatedly counseled on his inability to be at his appointed place of duty and to fulfill his responsibilities as a Soldier. In addition, he received NJP on three occasions and he completed only about 16 months of his 3-year active duty obligation. Thus, his service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge. 7. The evidence of record shows the applicant received NJP on three occasions, was reduced from E-4 to E-1, had a total of 32 days of time lost, and completed less than half of his 4-year reenlistment commitment. As such, his service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable. 8. In view of the foregoing, there is an insufficient basis for granting the request for upgrade of his general, under honorable conditions discharge. However, it would be appropriate at this time to correct the applicant's 26 June 1972 DD Form 214 to show his awards and decorations, as recommended below. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X____ ____X____ ____X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following awards to item 24 of his DD Form 214: * Bronze Star Medal with "V" Device (1st Oak Leaf Cluster) * Purple Heart * Air Medal * Good Conduct Medal * Vietnam Service Medal with 3 Bronze Service Stars * Republic of Vietnam Campaign Medal with Device (1960) * Republic of Vietnam Gallantry Cross with Palm Unit Citation (2nd Award) * RVN Civil Actions Honor Medal First Class Unit Citation * Combat Infantryman Badge * Combat Action Ribbon 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the characterization of his service pertaining to his 26 June 1972 discharge. _______ _ __X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150002059 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004792 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1