PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 March 1999                  
	DOCKET NUMBER:   AC98-10944
                                              AR1999015206

	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. Loren G. Harrell		Director	
	Ms. Juanita I. Williams 		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Ernest W. Lutz, 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, an upgrade of his discharge issued under other than honorable conditions.

3.  The applicant states, in effect, that he was young when he entered military service and that his discharge should be upgraded because honorable military service is a tradition in his family.

4.  The applicant’s military records show that he was born on 30 September 1952.  He enlisted in the Army on 30 January 1970 for 3 years at 17 years of age.  He was trained in military occupational specialty 13A (cannoneer) and served for 9 months before being discharged on 30 October 1970 for the purpose of immediate reenlistment.  He  reenlisted for Vietnam the following day and served in Vietnam as a track vehicle mechanic from 12 January to 2 November 1971, where he was wounded and awarded the Purple Heart.  

5.  On 2 August 1973 he again reenlisted and served in Germany for 1 year, 
9 months, and 12 days before going AWOL.  On 7 December 1977 he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial.  He had completed a total of 5 years, 5 months, and 1 day of creditable active service, had 886 days (2 years, 5 months, and 1 day) of lost time, and 31 days excess leave while awaiting separation processing. (NOTE:  Approximately half of the lost time occurred after the normal expiration of his term of service (ETS)).  In addition to the Purple Heart, he received the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Vietnam Cross of Gallantry with Palm, and the Good Conduct Medal.  The highest grade he attained was sergeant (E-5). 

6.  While on active duty the applicant received nonjudicial punishment (NJP) under Article 15, UCMJ on 28 August 1972 for wrongfully appearing at his duty station (the school brigade, Fort Bliss, Texas) out of uniform (no chevrons, grade or shoulder sleeve insignia).  On 28 February 1974 he received NJP at Fort Sill, Oklahoma, for being disrespectful in language toward his superior NCO who was then in the execution of his office.  In both instances the punishment consisted of a forfeiture of $50.00 pay.   

7.  The records show that on 24 April 1975, while serving in Germany, the applicant checked his health records out from his battalion aid station.  On 29 May 1975 he was reported AWOL.  His commander indicated that he was undergoing psychological counseling and medical treatment and had marital problems at the time.  On 27 June 1975 he was dropped from the rolls of the Army.  On the same date, his wife was notified of his absence and urged to advise him to return to military control.  He was apprehended by civilian authorities and returned to military control at Shore Patrol Headquarters, Long Beach, California, on 30 October 1977.
8.  Charges were then preferred against the applicant for his lengthy AWOL.  On 4 November 1977 he voluntarily requested discharge in lieu of trial by court-martial, acknowledging that he was guilty of the charge against him or of a lesser included offense, which also authorized a punitive discharge.  He consulted with military counsel who advised him of his rights.  He indicated that he was submitting a statement in his own behalf, however, none is contained in the records.  A medical examination found no physical disabilities, and he was found medically fit for separation.  

9.  On 4 November 1977 the appropriate authority approved the request for discharge and directed the issuance of a discharge under other than honorable conditions.  Accordingly, the applicant was discharged on 7 December 1977 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.   

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

11.  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. 

CONCLUSIONS:

1.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received for his lengthy AWOL.  

2.  His voluntary request for separation for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  His contention that he was young at the time and that honorable military service is a family tradition are not sufficiently mitigating to warrant relief.  The Board notes that he had served for 5 years and was 22 years old when he went AWOL.  

4.  Notwithstanding the foregoing, the Board notes that even though the applicant served satisfactorily for more than 5 years, his two honorable discharges were for the purpose of immediate reenlistment.  Consequently, all of his service is considered to have been served under other than honorable conditions.  This service  included combat service in Vietnam where he was wounded in action and awarded the Purple Heart.  

5.  While the applicant has submitted no evidence or sufficient argument to mitigate his lengthy AWOL, the Board notes that approximately half of the lost time charged to him occurred after his normal ETS.    

6.  Considering all of the facts and circumstances, the Board is of the opinion that the applicant’s discharge should be upgraded to general, under honorable conditions in the interests of justice.  A fully honorable discharge would not be appropriate, considering his lost time and record of NJP.  

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:

a.  by showing that the individual concerned was discharged from the Army on 7 December 1977 with a general, under honorable conditions, discharge under the provisions of Army Regulation 635-200, chapter 10; and 

b.  by correcting his separation document (DD 214) to show that he had lost time prior to his normal ETS from 29 May 1975 through 1 August 1976 and subsequent to his normal ETS from 2 August 1976 until 7 November 1976, when he was placed on excess leave.   

2.  That the Department issue to him a General Discharge Certificate in lieu of the discharge under other than honorable conditions previously issued to him on that date.  

BOARD VOTE:  

____X____  ____X____  ____X____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990318	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.