PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 January 1999                   
	DOCKET NUMBER:   AC98-12602
				   AR1998013598

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Ms. Margaret V. Thompson		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 be upgraded to honorable and that all material pertaining to his attempted robbery and drug possession charges be removed from his records.

3.  The applicant states that there was no legal basis to charge him with attempted robbery or wrongful possession of dangerous drugs.  A civilian court found no probable cause after a hearing.  His request for discharge was coerced.
His counsel contends that the applicant was improperly held in pre-trial confinement on improper charges.  The applicant was neither dangerous nor a flight risk.  After being told that by submitting a request for discharge in lieu of court-martial as the fastest way to get out of jail and go home, he reluctantly submitted his request for an administrative discharge.  Counsel requests that all matters pertaining to the attempted armed robbery and drug possession incident be removed from the applicant’s records; that his records be corrected to reflect all his awards; that his records be corrected to reflect promotion to Corporal; that his discharge be upgraded to honorable and that he receive all back pay and allowances, with interest, due him.

4.	The applicant’s military records show that he enlisted in the Regular Army on 31 January 1969; was discharged on 16 January 1970 for the purpose of immediately reenlisting on 17 January 1970; and was discharged again on        11 June 1970 for the purpose of immediately reenlisting on 12 June 1970, for five years and for assignment to Vietnam.

5.  Between October 1969 and June 1970, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty; failing to be at his appointed place of duty; and for being absent without leave from 30 May – 2 June 1970, respectively.  The third Article 15 included a reduction in pay grade as punishment.

6.	 The applicant arrived in Vietnam on 15 August 1970 where he served as a Fire Distribution Operator.  He accepted non-judicial punishment under Article 15, UCMJ for being absent without authority from 1500 14 January – 1000        15 January 1971.  His punishment included a reduction in pay grade.  He departed Vietnam on 8 July 1971 after serving through two campaigns.

7.  The applicant departed AWOL from 12 August – 7 October 1971 and from    15 October – 7 November 1971.

8.  On 5 December 1971, the applicant was arrested and confined by civil authorities for attempted robbery and possession of an unknown type of dangerous drug.  He was released to military control on 27 December 1971.

9.  On 6 January 1972, the applicant was assigned to the Personnel Control Facility (PCF) but his DA Form 20, Personnel Qualification Record, does not indicate that he was actually in confinement.

10.  On 12 January 1972, court-martial charges were preferred against the applicant for three specifications of AWOL from 12 August – 8 October 1971;    15 October – 8 November 1971; and 5 –27 December 1971.  

11.  On 7 February 1972, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Chapter 10, AR 635-200 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf wherein he stated the first time he went AWOL was when he came home from Vietnam.  He had stayed gone to settle his mind.  When he turned himself in he was ready for a discharge, but they returned him to duty because he didn’t have enough AWOL time, so he left again.  He did not go AWOL a third time; he was picked up and confined for a robbery he did not commit.  He also added a handwritten note on his request:  “I understand the above and no one has forced me to request a discharge.”

12.  On 18 February 1972, the appropriate authority approved the request and directed the applicant be issued an Undesirable Discharge Certificate.

13.  On 9 March 1972, the applicant was discharged in pay grade E-1 under the provisions of Army Regulation 635-200, Chapter 10, discharge in lieu of trial by court-martial.  His DD Form 214 shows that he had completed 2 years, 7 months and 27 days of creditable active service and had 103 days of lost time.  It also shows that he was awarded the Vietnam Campaign Medal and one overseas service bar.  It shows an erroneous entry in block 17 that this was his first enlistment for a 4 year term and a date of entry as 17 January 1970.

14.  On 24 April 1972, the District Court of Geary County, KS dismissed all charges.

15.  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.

16.	The Department of Defense Financial Management Regulation (DoDFMR) states in Table 3-3 that when a member is confined by civil authorities and the 
charges are dismissed and it is clear that arrest and detention were not due to a member’s misconduct, then the absence may be excused as unavoidable.

17.  On 9 November 1982, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.

CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement in regards to the characterization of his discharge.

2.  Trial by court-martial was warranted by the length his first two AWOL periods alone (57 days and 24 days, respectively).  His voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, 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; in fact, he acknowledged in his own handwriting on his request that “…no one has forced me to request a discharge.”

3.  There is some merit to the applicant’s contention that he should not be credited with the third period of lost time.  All of the charges for which he was in civil confinement were dismissed, although not until after he had been discharged from the Army.  While not automatic, the DoDFMR states that when charges are dismissed then the absence may be excused as unavoidable.  As a matter of equity, it would be appropriate to show that the period 5 –26 December 1971, when he was in civil confinement, was not lost time but was creditable active service.  No back pay for this correction would be authorized because     U. S. Code, Title 32, section 3702 prohibits a claim against the government unless it is received by the Comptroller General within 6 years after the claim accrues.  At no time is the payment of interest appropriate.

4.  It would not be appropriate to remove from his records any documents pertaining to the attempted armed robbery and drug possession incident.  They constitute an historical record of the applicant’s military service during that specific period of time.

5.  There is no evidence of record to show the applicant was held in pre-trial confinement, improperly or otherwise.  Evidence does show that he was assigned to the PCF on 6 January 1972; however, the evidence also shows that he was attached to the PCF on 8 October 1971 and again on 8 November 1971 (on the occasions of his return from two AWOL periods) with no indication that he was in actual confinement during any of these periods.  

6.  There is no evidence that the applicant was ever promoted to Corporal.  The highest grade he ever held was Private First Class.  He had been reduced in grade on two occasions as punishment under Article 15 and he was appropriately reduced to Private E-1 upon his discharge and receipt of a discharge under other than honorable conditions.

7.  The applicant was awarded the National Defense Service Medal and it is listed on his first DD Form 214.  His last DD Form 214 does include his overseas bar but does not include the Vietnam Service Medal.  Block 17 of this DD Form 214 is also incorrect in all three sub-blocks. 

8.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That the applicant’s DD Form 214 for the period ending 9 March 1972 be corrected by:

     a.  changing blocks17a to check the “reenlisted” block; 17b to read “5”; and 17c to read “12 Jun 70;”

     b.  adding to block 24 the Vietnam Service Medal with two bronze service stars; 

     c.  changing block 30 to reflect 81 days lost and to delete “5 Dec 71 – 26 Dec 71;” and

     d.  correcting blocks 22a(1), 22a(3) and 22b to reflect the adjustment in lost time.  

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

BOARD VOTE:  

___TNK_  ___WTM_  ___MVT_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Thomas N. Kuhn

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-12602/AR1998013598	
SUFFIX		
RECON		
DATE BOARDED	19990113	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19720309	
DISCHARGE AUTHORITY	AR 635-200, Ch 10. . . . .  	
DISCHARGE REASON	A-70	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	123.00	
3.	107.00	
4.	100.00	
5.		
6.