PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 November 1998                   
	DOCKET NUMBER:   AC98-11374

	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. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Ellis		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 under other than honorable conditions (UOTHC) discharge be upgraded to a general under honorable conditions discharge.  He states he has suffered a massive stroke and has been diagnosed with throat cancer.  He is seeking VA benefits.

3.  The applicant’s military records show that he was inducted into the Army on 10 August 1970.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He arrived in Vietnam on 8 January 1971 where he served as a rifleman.  He was honorably discharged on 23 April 1971 for the purpose of immediately reenlisting on 24 April 1971.  He departed Vietnam on 17 December 1971.  He had earned the Combat Infantryman Badge.

4.  The applicant departed absent without leave (AWOL) from 31 January to       1 March 1972 and again from 17 March to 19 April 1972.  

5.  The court-martial charge sheet and the Chapter 10 packet are not available but appear to be related to the applicant’s AWOL periods.

6.  On 24 April 1972, the applicant completed a separation physical and was found qualified for separation.

7.  On 30 June 1972, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service with a discharge UOTHC.  He had completed 1 year, 9 months and 18 days of creditable active service and had 65 days of lost time.  

8.  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, the discharge authority may direct an honorable or general discharge, if such are merited by the member’s overall record during the current enlistment.

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  While the Board has taken cognizance of the applicant’s severe health problems, this factor alone would not warrant the relief requested.

3.  However, while the conduct which led to the applicant’s separation cannot be condoned the Board notes that the applicant’s record, to include his tour in Vietnam where he earned the Combat Infantryman Badge, was without blemish prior to his two periods of AWOL.  It would be fair and equitable to upgrade the applicant’s UOTHC discharge to a general discharge in consideration of his prior good service and his commendable service in Vietnam.

4  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 all of the Department of the Army records related to this case be corrected by:

    a.  showing that the individual concerned was given a general discharge from the Army on 30 June 1972, under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service.

    b.  issuing the applicant a General Discharge Certificate from the Army of the United States, dated 30 June 1972, denoting a general discharge in lieu of the Under Other Than Honorable Conditions Discharge Certificate now held by him.

    c.  issuing the applicant a new DD Form 214 reflecting the aforementioned corrections.

BOARD VOTE:

FNE    TAP      BJE    GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                                                                                              
						    CHAIRPERSON