PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 March l999    
	DOCKET NUMBER:   AC98-09151
				   AR1998013460 

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Gary C. Miller		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 correction of his DD Form 214 (Report of Transfer or Discharge) to show award of the Air Medal (AM) and, in essence, reconsideration of the Board’s prior decision to deny his request for upgrade of his Undesirable Discharge (UD), under other than honorable conditions to a discharge under honorable conditions. 

3.  The applicant states, in effect, that he extended his tour in the Republic of Vietnam (RVN) for 6 months and was told that he would be eligible for an “early out” upon return to the United States.  He submits several statements from himself and other stating that he was required to continue to serve after his return to the United States.  He claims that when he went to Fort Knox, Kentucky, after return from the RVN, he was going to be assigned to “pick up paper” on post when he was a qualified helicopter mechanic.  He was then to be assigned to Fort Riley, Kansas, but still not in his military occupational specialty (MOS) 67N20 (Helicopter Repairman).  He also had family problems.  Other soldiers returning in similar circumstances were not treated the same.  He also includes statements from relatives, friends, and others with whom he works or knows.  All attest to his good post service adjustment.  He also includes a copy of a citation for award of the AM.

4.  Counsel fully supports the request of the applicant.

5.  The applicant’s military records show that he enlisted in the Regular Army on 23 October 1967 for 3 years.  He received one nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for sleeping on fire guard during basic combat training.  He went on to advanced individual for training in MOS 67N (Helicopter Repairman).  He was awarded the Aircraft Crewman Badge upon completion of his MOS producing school at Fort Eustis, Virginia, by Special Order 78, issued on 19 April 1968.  (Note:  The badge was permanently awarded by his unit in the RVN on 7 January 1969).  After assignment to Fort Campbell, Kentucky, in his primary MOS to an aviation unit, the unit was deployed to the RVN, arriving on 29 June 1968.  The highest rank he attained was specialist four, pay grade E-4.  

6.  On 13 January 1969, General Orders 173, was issued by the 1st Aviation Brigade in the RVN, awarding the applicant the Air Medal for service during the period 19 August through 1 September 1968.  

7.  Sometime in March 1969, the applicant extended his tour in the RVN for
6 months.  In connection with this extension, he was authorized a 30 day leave, plus travel time.  He went on leave to the United States on 5 April 1969.  He failed to return and was AWOL from 21 May through 3 July 1969, when he returned to his unit in the RVN.  He pled guilty of the offense before a special court-martial on 26 July 1969.  He was sentenced to forfeit $82 per month for 
3 months and to be confined at hard labor for 3 months.  The convening authority suspended the confinement portion of the sentence for 3 months and on 
13 August 1969, the remaining portion of the sentence was set aside.

8.  On 3 February 1970, special orders were issued directing the applicant’s return to the United States for reassignment on or about 22 March 1970, 4 days prior to his date expected to return from overseas (DEROS) of 26 March 1970.   

9.  In any case, he was returned to the United States on 20 March 1970, and was assigned to Fort Knox, Kentucky.  He failed to report on 27 April 1970, and was AWOL from 27 April–6 May 1970, from 9 May-19 July 1970 and from 25-27 July 1970.  Then he was AWOL from 31 August 1970 through 30 June 1971 and from 
l July 1971 through 16 March 1973.

10.  Upon return to military control, he was charged with two periods of AWOL 
(27 April-20 July 1970 and 31 August 1970-16 March 1973).  The applicant consulted with legal counsel, was advised of his rights, and requested a discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200.  He made a statement to the effect that he should have been discharged when he returned from overseas, that he did not desire rehabilitation, and even though he felt the discharge was “wrong”, he would accept it.  His request for discharge was approved by the separation authority on 27 April 1973, who directed the issuance of a UD.  

11.  On 6 July 1973, the applicant was discharged as directed with a UD.  He was credited with 2 years, 9 months and 28 days active service and 1051 days lost time, 873 days beyond his normal expiration of term of service.  His DD Form 214, in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) show that he was awarded the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal with 4 bronze service stars (denoting four campaigns),and the Republic of Vietnam Campaign Medal with/60 Device.  While two expert marksmanship badges are shown, the award of the Aircraft Crewman’s Badge and the Air Medal are not shown on the DD Form 214.  

12.  On 8 July 1975, the Army Discharge Review Board denied his request for upgrade of his discharge.  His arguments were essentially the same as in this application.

13.  On 28 July 1982, this Board denied his request for upgrade of his discharge. His arguments essentially were the same and that he was within 5 months of his ETS when he returned to the United States.  He also was forced to take the discharge or receive a long period of confinement.  The Board found that the

discharge procedures were proper, that he elected to take an administrative discharge in lieu of trial by court-martial and that his repeated periods of long AWOL supported the discharge action.

14.  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, at the time of the applicant's separation the regulation provided for the issuance of a UD.

15.  Army regulations show that the unit the applicant served in from June 1968-March 1969 was awarded the Vietnam Cross of Gallantry with Palm Unit Citation by Department of the Army General Order 6, 1974.  

CONCLUSIONS:

1.  The applicant’s military records show that he was awarded the Air Medal and the Aircraft Crewman Badge by appropriate unit orders in 1968 and 1969.  However, these awards are not shown on his DD Form 214 issued on 6 July 1973.

2.  Further, his records do not show that he was awarded the Vietnam Cross of Gallantry with Palm Unit Citation to which he is entitled, most likely since he was discharged before this award was authorized for his unit.

3.  A review of the applicant’s discharge fails to show that he has presented any new or significant information which would provide a basis for upgrade of his discharge.

4.  It is true that he served for more than 20 months in the RVN, but he also had a 43 day period of AWOL while serving in the RVN.  He received a special court-martial for this offense.  The Board must conclude that his long period of service in the RVN, while commendable, was not so significant as to overcome his subsequent record of service and extensive periods of AWOL.

5.  Further, there is no evidence provided that he was ever promised an early release from active duty if he extended his tour of duty in the RVN.  In fact, Army regulations then in effect generally provided that a soldier had to have less then 90 days upon return from overseas to be given an early release from active duty. The applicant clearly did not meet this criteria.

6.  This Board concurs with the prior Board’s action and rationale for denying his application.  The applicant requested an administrative discharge in lieu of trial by court-martial.  The discharge process was proper and he was fully aware of the reason and consequences of his actions when he requested the discharge.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

7.  While the Board has taken cognizance of his personal problems, his dissatisfaction with his pending duty assignments upon return from overseas, , and his good post service adjustment, as evidenced by the many letters with his current application, none of these factors, either individually or in sum, warrant an upgrade of his discharge.

8.  In view of the foregoing, the applicant’s records should be corrected, but only  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 Vietnam Cross of Gallantry with Palm Unit Citation.

2.  That upon completion of the above correction, that a DD Form 215 (Correction to DD Form 214) be issued to correct his DD Form 214 issued on 
6 July 1973 to show the award of the Vietnam Cross of Gallantry with Palm Unit Citation as well as the award of the Air Medal and the Aircraft Crewman Badge, which are documented in his records.

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

BOARD VOTE:  

___EW__  __GCM__  __RVC__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________RVC__________
		        CHAIRPERSON

INDEX

CASE ID	AC9809151/AR1998013460	
SUFFIX		
RECON	19820728	
DATE BOARDED	19990303	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730706	
DISCHARGE AUTHORITY	AR635-200, C10	
DISCHARGE REASON	A71.00	
BOARD DECISION	MODIFY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	107.00	
2.	144.00	
3.	A01.13	
4.	A92.35	
5.	A93.07	
6.	A94.07