PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            14 April 1999
	DOCKET NUMBER:    AC98-09505
				    AR1999016146

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern, III		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 reconsideration of his previous application to correct his records by upgrading his bad conduct discharge to honorable, or barring that, his honorable discharge of 3 September 1969 be declared a complete and unconditional separation. 

3.  The applicant states, that the decision reached by the Board contained errors. The reason for denial [by the Board] indicated that he was fined for speeding citations, which was petty.  He did not receive a ticket in Vietnam in July of 1970, because he was not there at that time.  The applicant submits three letters of support from members of his community with his application.

4.  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 14 May 1997 (COPY ATTACHED).

5.  The applicant’s statement that he did not receive a ticket in Vietnam in July of 1970, because he was not there at that time, and the information contained in the 14 May 1997 decision by the Board that he received nonjudicial punishment under Article 15, UCMJ, for being in an off limits location and for speeding are somewhat misleading.  The applicant’s DA Form 20 (Enlisted Qualification Record) clearly indicates that on 16 October 1970 he was in a casual status, enroute to Vietnam, and that on 12 December 1970 he was assigned to the   266th Supply and Services Battalion in Vietnam.  A 1 April 1972 review of the record of general court-martial by the staff judge advocate of the Saigon (Vietnam) support command indicates that the applicant arrived in Vietnam in December 1970, as does a 14 June 1972 factual data concerning restoration, clemency, and parole review.  

6.  However, the applicant himself has stated, in a letter to a United States Senator, that he was attached to Headquarters Troop at Fort Lee, Virginia (following the death of his mother), until late 1969, then he went to Vietnam.  [The applicant was discharged at Fort Lee on 3 September 1969 for the purpose of reenlisting.  His grade at the time of discharge was E-5 and his character of service was honorable.  He had 2 years, 10 months, and 3 days of service].  Before leaving for Vietnam he reenlisted with honors (The applicant’s DD Form 4, Enlistment Contract, shows that he reenlisted in the Army for 6 years on               4 September 1969).   He states that he had another emergency leave and returned home and again returned to Vietnam.

7.  The applicant did receive nonjudicial punishment for speeding, as stated in the 14 May 1997 Board decision; however, at Fort Lee, Virginia, on                    19 June 1970, not in Vietnam as indicated in the Board decision.  The error is regretted.  He did, however, receive nonjudicial punishment on 10 July 1970, for being in an off limits area at LZ (landing zone) English in Vietnam on 5 July 1970. Both documents of nonjudicial punishment action are contained in his records.

CONCLUSIONS:

1.  The apparent contradictions in the applicant’s records concerning his period of service in Vietnam cannot be resolved.  Nonetheless, there is no dispute concerning the applicant’s general court-martial conviction, and the reasons for his conviction.  The Board of 14 May 1997 did not deny his request because he was fined for speeding citations, but because it determined that there was no error in the applicant’s record, that he had provided no information nor any probative evidence of any error in his records, or any injustice done him.
  
2.  This is yet true and the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

3.  The overall quality of the applicant’s last period of service does not warrant recharacterization of his discharge. However, in view of the honorable nature of his prior enlistment, his honorable discharge on 3 September 1969 should be considered a complete and unconditional separation.  To do otherwise would work an injustice upon him by depriving him, or his heirs, of consideration for certain VA benefits for his honorable period of service.

4.  In view of the foregoing findings and conclusions and in recognition of his previous years of good service, it would be appropriate and proper to consider his honorable discharge on 3 September 1969 as a complete and unconditional separation from the military service.

5.  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 eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 3 September 1969.

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

BOARD VOTE:  

____klw_  __aao___  ___tbr__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-09505/AR1999016146	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990414	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.110.00		
2.		
3.		
4.		
5.		
6.