PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            8 June 2000
	DOCKET NUMBER:   AR2000035311

	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. Carl. W. S. Chun		Director	
	Mr. Joseph A. Adriance 		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). 

3.  The applicant states, in effect, that he served his country in combat in Vietnam when his country needed him and he believes he served it well.  He reenlisted in 1975 for 4 years and at the time he planned to make the Army his career.  Unfortunately, he was unable to adjust to the demands military life placed on him and after serving 2 years of this 4 year commitment he made the mistake of going AWOL.  He claims to have lived with this mistake for the past twenty years while being an active productive member of his community and a good family man.  He indicates that he is proud to have served his country when needed and the passing of time compels him to attempt to close the book on this mistake by requesting his discharge be upgraded.  

4.  The applicant’s military records show that on 29 March 1968, he initially entered the Regular Army for 3 years.  The record includes a DD Form 214 
(Armed Forces of the United States Report of Transfer or Discharge) issued to him in conjunction with his separation from this period of prior service.  This document verifies that he was unconditionally separated on 2 November 1970, under the provisions of section VII, chapter 5, Army Regulation 635-200, by reason of early separation of an overseas returnee.  At the time of this release from active duty and transfer to the USAR, the applicant had completed 2 years, 7 months, and 4 days of active military service and held the rank of 
specialist/E-4.  

5.  The DD Form 214 also verifies that the applicant’s received an honorable characterization of service for this period of prior service and that he had completed a combat tour in Vietnam.  In addition, it shows that he was awarded the National Defense Service Medal (NDSM); the Vietnam Service Medal (VSM); the Republic of Vietnam Campaign Medal (RVNCM); the Bronze Star Medal (BSM); and the Air Medal (AM).

6.  On 18 February 1975, he enlisted in the Regular Army for 4 years, in the rank of private/E-2, which is the enlistment period under review by this Board. Upon his successful completion of advanced individual training he was awarded military occupational specialty 13B (Cannoneer) and he was assigned to overseas duty in Germany.  

7.  During his tour in Germany, on 10 February 1976, the applicant was promoted to the rank of private first class/E-3 and in July 1977 he completed his tour and was reassigned to Fort Polk, Louisiana, where he arrived for duty in August 1977. 

8.  The applicant’s first 2 years and 7 months of service on the enlistment under review were free of any disciplinary problems and there is no record of 
courts-martial or nonjudicial punishment (NJP) during this period.  The applicant’s only recorded misconduct during this period of service occurred when he went AWOL on two separate occasions, between September and November 1977, which is the misconduct which ultimately led to his administrative separation. 

9.  On 30 November 1977, a DD Form 458 (Charge Sheet) was prepared which preferred a court-martial charge against the applicant for two specifications of AWOL totaling 86 days.  The first specification covered the period 1 through 
9 September 1977 and the second specification was for the period 12 September to 29 November 1977.  

10.  As a result of these charges the applicant voluntarily requested to be discharged for the good of the service, under the provisions of chapter 10, 
Army Regulation 635-200, in lieu of trial by court-martial.  He enclosed a statement with his request which indicated that he did not believe he deserved an UOTHC discharge because he had served in Vietnam for 16 months and had received an Army Commendation Medal with a “V” (Valor) device and the Air Medal with 24 Oak Leaf Clusters.  He also expressed his willingness to again serve his country during a time of war, but indicated that his peacetime service had placed a hardship on him and his family that made a discharge the best solution to his problems at that time.  

11.  Although not documented in his separation documents, the applicant’s Military Personnel Records Jacket (MPRJ) does include General Order (GO) Number 1879, dated 6 February 1970, Subject:  “Award of the Army Commendation Medal (ARCOM) for Heroism”, which verifies that the applicant was awarded the ARCOM/with “V” device, for heroism in connection with military operations against a hostile force in the Republic of Vietnam on 30 January 1970.  The MPRJ also includes GO Number 4651, dated 28 March 1970, Subject:  “Award of the Air Medal”, which shows that the applicant was awarded the 1st through 24th Oak Leaf Clusters of the Air Medal for meritorious achievement while participating in aerial flight, between 28 August 1969 and 
10 March 1970.  

12.  On 20 December 1977, the appropriate authority approved the applicant’s request for separation and directed that he receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  Accordingly, on 20 December 1977, the applicant was discharged after completing 2 years, 7 months, and 
6 days of his current enlistment and a total of 5 years, 2 months, and 10 days of active military service. 

13.  The DD Form 214 issued to the applicant upon his discharge, on 
20 December 1972, lists the following awards in block 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the NDSM; the VSM; the RVNCM; the BSM; the AM; and the Republic of Vietnam Gallantry Cross with Palm.  It does not include the ARCOM/ with “V” device or the 24 Oak Leaf Clusters to the AM.  

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although a discharge under other than honorable conditions is normally considered appropriate, an honorable or general discharge is authorized for soldiers separating under these provisions. 

CONCLUSIONS:

1.  The applicant’s voluntary separation for the good of the service, to avoid trial by court-martial was administratively correct and in conformance with the applicable regulations.  There is no indication that the separation contained any procedural errors that jeopardized the rights of the applicant.  

2.  However, while the Board does not condone the applicant’s AWOL, it did consider the fact that that this misconduct was strictly military in nature and was not a serious crime against society.  The Board also determined, given the honorable nature of the preponderance of the applicant’s service, that his misconduct was an aberration from his normal good conduct.  Therefore, the Board decided that his failure to perform to Army standards was mitigated by his service of sufficient merit to warrant an upgrade of the discharge under review. 

3.  The Board found, although the applicant’s misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge, his discharge was inequitable because the overall quality of his service did not warrant the granting of an UOTHC discharge.  Therefore, in the interest of equity, the Board concluded it would be appropriate to grant the applicant partial relief in the form of an upgrade of his discharge to general, under honorable conditions.

4.  Additionally, as a result of this upgrade action, it is necessary to take action to restore the applicant’s grade to private first class/E-3, which is the rank he held prior to being reduced as a result of receiving an UOTHC discharge.  Thus, the Board determines, as a matter of propriety, that the applicant’s grade be restored to private first class/E-3 in conjunction with this upgrade action.

5.  The evidence of record clearly shows that the applicant was awarded the ARCOM/with V device and 24 Oak Leaf Clusters of the AM that were erroneously omitted from either of his DD Forms 214.  Therefore, the Board supports correcting these administrative errors at this time. 

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 separated from the service with a general, under honorable conditions discharge on 20 December 1977, in lieu of the UOTHC discharge of the same date now held by him.  In addition, that his grade be restored to private first class/E-3 in conjunction with this separation action.

2.  That the individual concerned be issued a corrected DD Form 214 which includes the ARCOM/with V device and the AM 24th Oak Leaf Cluster to the listed awards and decorations portion of the form.  

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

BOARD VOTE:  

___slp___  __ao____  ___lm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Shirley L. Powell_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000035311	
SUFFIX		
RECON		
DATE BOARDED	2000/05/08	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1970/12/20	
DISCHARGE AUTHORITY	AR 635-200 C10 	
DISCHARGE REASON	In Lieu of Court-Martial	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.  46	107.0000	
3.		
4.		
5.		
6.