PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            22 July 1999
	DOCKET NUMBER:   AR1998013602

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. Raymond J. Wagner		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 a general discharge, that the lost time reflected on his report of separation (DD Form 214) be corrected to reflect the correct amount of lost time, and that his awards of the Air Medal and Army Commendation Medal (ARCOM) also be annotated on his DD Form 214.

3.  The applicant states that his military service was that of a good soldier until he returned from Vietnam and was assigned to Fort Meade, Maryland.  He goes on to state that he had a difficult time adjusting to stateside duty and felt that his family came first.  He further states that he cannot understand how he was charged with 100 days of AWOL time during the year he was assigned to Fort Meade and contends that he was actually present for duty during some of the period in which he was charged as AWOL.  He also states that he accepted the advice of counsel to accept what was being offered at the time and just get out of the Army.  He continues by stating that he was awarded the Air Medal and ARCOM but that they were omitted from his DD Form 214 at the time of separation. 

4.  The applicant’s military records show that the applicant enlisted on 2 October 1967 for a period of 3 years under the airborne and buddy basic training plan.  He successfully completed his training and was transferred to Vietnam on 13 April 1968 for duty as light weapons infantryman. 

5.  On 8 November 1968 he was convicted by a summary court-martial of missing movement.  He was sentenced to a forfeiture of pay.

6.  He was promoted to the pay grade of E-4 on 6 January 1969 and served in Vietnam until 9 April 1969.  He was awarded the Combat Infantryman Badge, the Bronze Star Medal, and the Air Medal.

7.  Upon completion of his tour he was transferred to an armored cavalry regiment at Fort Meade, Maryland.  On 6 June 1969 nonjudicial punishment was imposed against the applicant for being AWOL from 31 May to 1 June 1969.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 90 days), a forfeiture of pay, restriction and extra duty.  The suspended portion of his punishment was vacated on 23 June 1969.

8.  The applicant began a series of short AWOL’s and NJP was imposed against him on at least four different occasions during the period 5 July 1969 to 1 October 1969.  He was reduced to the pay grade of E-1 on 11 September 1969.

9.  On 19 August 1969 the commander initiated action to bar the applicant from reenlistment based on his disciplinary record and his failure to respond to numerous counseling sessions.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar on 16 September 1969.

10.  On 2 December 1969 charges were preferred against the applicant for being AWOL from 18 October to 23 October 1969, from 25 October to 27 October 1969, and from 30 October to 20 November 1969.  He was placed in confinement from 27 November 1969 to 11 January 1970 and went AWOL on two occasions after his release.  

11.  The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records show that he was discharged under other than honorable conditions on 5 March 1970, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 2 years, 1 month, and 24 days of total active service and had 100 days of lost time due to AWOL and confinement. At the time of his separation his DD Form 214 did not reflect his award of the Air Medal or the Bronze Star Medal.  A review of the periods of lost time depicted on his DD Form 214 coincides with the evidence of record. 

12.  A review of his records failed to reveal that the applicant was awarded the ARCOM for his service in Vietnam.

13.  There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of such a request is that the individual must state that they have been counseled and that they understand the consequences of their request and the effect that a discharge under other than honorable conditions may have on their benefits as well as the influence it may have in civilian life.  Additionally, individuals are afforded an opportunity to submit a statement in their own behalf or to explain any mitigating circumstances that may have an effect on the type of discharge they receive.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s 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.

2.  Accordingly, it must also be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions regarding his discharge have been noted by the Board; however, given the seriousness and repeated nature of his offenses they are not sufficiently mitigating to warrant relief in his case.  Furthermore, a request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned as well as an admission that he understood that he could receive a discharge under other than honorable conditions and that he understood the consequences of such.  Had there been mitigating circumstances that led to his misconduct, he could have submitted a statement in his own behalf at the time he submitted his request or he could have stood trial by court-martial whereas he could have asserted his innocence based on mitigating circumstances.  Accordingly, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.

4.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the extensive length of his absence.

5.  The applicant’s records clearly show that he was awarded the Air Medal and the Bronze Star Medal and his records should be corrected accordingly.  However, there is no evidence in the available records to show that he was awarded the ARCOM for his service in Vietnam.  Therefore, in the absence of evidence to show otherwise, there is no basis to grant his request in that matter.

6.  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 that the individual concerned was awarded the Bronze Star Medal and the Air Medal.

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

BOARD VOTE:  

___tk ___  ___cmf __  __rjw ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Calvin M. Fowler____
		        CHAIRPERSON

INDEX

CASE ID	AR1998013602	
SUFFIX		
RECON		
DATE BOARDED	1999/07/22	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/03/05	
DISCHARGE AUTHORITY	AR635-200, ch10	
DISCHARGE REASON	A70.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189 	110.0000/CORR 214	
2.  46 	107.0000/AWARDS	
3.  689 	144.7000/GOOD OF SVC	
4.		
5.		
6.