PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           28 November 2000                   
	DOCKET NUMBER:   AR2000037428

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John N. Kern		Member	
	Mr. Wilford A. Hale		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 essence, discharge from the Army with back pay and allowances at the completion of his contracted 3 year period of service in 1973.

3.  The applicant states, in essence, that he reenlisted in the Army on 12 May 1970.  He returned from Vietnam for reassignment on 22 November 1970.  He was told to go home and await orders to a new assignment, but he never received any orders.  He made several attempts to contact "the authorities" but never got any results.  He is still awaiting orders and a military discharge.  

4.  The applicant’s military records show that he was inducted into the Army of the United States on 2 July 1969.  He had a 6 year total service obligation.  He had completed 10 years education and a waiver for induction was required for several speeding arrests between 1967 and 1969.  He was trained as an Infantryman (military occupational specialty (MOS) 11B).  

5.  Upon completion of his training, he was ordered to duty in the Republic of Vietnam (RVN), with a reporting date to the Overseas Replacement Station at Oakland, California of 1200 hours, 1 December 1969.  He did not report until 
3 December 1969.  On 4 December 1969, he received nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice.  His punishment included forfeiture of $10 pay.  He did not appeal the punishment.  He was then shipped on to the RVN, arriving in that command on 7 December 1969.  He was assigned to duties as a rifleman with the 1st Cavalry Division.  

6.  On 11 May 1970, he was honorably discharged and on 12 May 1970, he immediately reenlisted for 3 years in pay grade E-3.  His DD Form 214 (then entitled Armed Forces of the United States Report of Transfer or Discharge) shows that he was credited with 10 months and 8 days active service (item 12) and he had 2 days lost time (item 26d) due to being absent without leave (AWOL).  His awards and decorations (item 24) included the National Defense Service Medal (NDSM), the Vietnam Service Medal (VSM) and the Combat Infantryman Badge (CIB).  His enlistment option was for retraining in Army Career Group 76 (Supply).  

7.  He took 30 days leave in connection with his reenlistment, and was scheduled to return to the Overseas Replacement Station at Oakland on or about 20 June 1970, but received a 10-day leave extension until 30 June 1970 from the Office of Personnel Operations, Department of the Army.  However, he failed to report to the Oakland Oversea Replacement Station until 6 July 1970 (6 days AWOL).  He returned to his unit in the RVN and on 13 July 1970, he received a second NJP for this period of AWOL.  His punishment included 14 days restriction and 
2 hours a day extra duty for 14 days.  He did not appeal the punishment.

8.  On 4 October 1970, he was advanced to the rank of specialist, pay grade E-4. 
His MOS was 76A (Supplyman).  

9.  On 18 November 1970, Special Orders 322, were issued by Headquarters, 
1st Cavalry Division (Airmobile) in the RVN directing the return of the applicant to
the Overseas Replacement Station-Oakland, on or about 22 November 1970 for further reassignment to a unit to be determined after his return to the United States.  He was authorized 45 days leave enroute to his new duty station. 

10.  The applicant arrived back in the United States on 23 November 1970.  A PC Form 450R (Assignment Instructions) was issued to him by the Overseas Returnee Station, Oakland since he was returning without a new duty assignment in the United States.  His leave address was in St. Louis, Missouri.  He also gave his telephone number (but no area code).  His duty preferences were for Aberdeen Proving Grounds, Maryland; Fort Campbell, Kentucky; or Fort Knox, Kentucky.  The form also stated:  

"I fully understand that if I do not receive assignment instructions within 
10 days prior to completion of my leave I must telephone the Returnee Reassignment Station, Oakland, California, between 0645-1530 Monday-Friday, Pacific Standard Time" and then the AUTOVON (military dialing system) numbers were shown.  If he was not near a military installation, he was to call collect to a civilian number (civilian prefix/number given, but no area code).  The form then went on to state:  "If upon completion of my leave I have not received orders or a message informing me of my next duty station I must report to the nearest Army installation.  Non-receipt of orders does not authorize me further leave."  

He signed this form, but it is not witnessed.

11.  In connection with the efforts to reconstruct what happened in the applicant's case and based upon earlier Congressional inquiries, a complete set of his finance records (Leave and Earning Statements) were obtained.  These documents show that he received his last full pay through 31 October 1970.  A form was completed by his servicing Finance Office in the RVN during his outprocessing which stated that he had last been paid through October ($180.00), that he would not be paid for November 1970 from that servicing Finance Office and that he had been deleted from the "JUMPS" (Joint Uniform Military Pay System) as of 3 November 1970.  The form noted that he had been promoted to pay grade E-4 on 4 October 1970 and that he had received advanced pay in the amount of $112.00 on 21 November 1970.  The last  pay voucher in his records shows that he received another partial pay in the amount of $534.00 on 23 December 1970.  He was paid this amount at the Oversea Returnee Station at Oakland and he signed for the payment in person.  

12.  There are no further personnel or finance records available which show the applicant's status after 23 December 1970.  Further, the records of the US Army Deserter Information Point at Fort Harrison, Indiana shows that the applicant has never been declared AWOL or dropped from the Rolls of the Army since 1970.

13.  The applicant's military records show that besides the award of the NDSM, VSM and CIB, he is also entitled to the award of the Army Commendation Medal (ARCOM) and the Republic of Vietnam Campaign Medal (RVNCM) with 
60 Device .  

14.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.  Appendix B of that regulation shows that the applicant is entitled to the wear of three bronze service stars (BSS) on his VSM for participation in the following campaigns in the RVN:  1) the Vietnam Winter-Spring Campaign 1970 (1 November 1969-30 April 1970);  2) the DA Sanctuary Counteroffensive (1 May-30 June 1970);  and 3) the Vietnam Counteroffensive-Phase VII (1 July 1970-30 June 1971).  

15.  The applicant is also entitled to the award of the Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Order 8, 1974.  

16.  Army Regulation 600-8-22 provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  There is no record of approval or disapproval of this award in his records.  

17.  Army Regulation 635-200, at chapter 5, provides, in pertinent part, that the Secretary of the Army may approve the discharge of soldiers for the convenience of Government, when it is determined that the discharge would be in the best interest of the Army.  An honorable discharge, a general discharge under honorable conditions, or an uncharacterized discharge, if the soldier is in an entry level status, may be directed under this separation authority. 

18.  Army Regulation 600-8-10, currently in effect, and previously in effect as Army Regulation 630-5, provides that soldiers may be placed on excess leave without entitlement to pay or allowances in certain selected cases.  However, the soldier retains credit for time served during this excess leave period.  For more than 60 days excess leave, the case must be referred to the Department of the Army for final action.

19.  Title 10, Untied States Code, at Section 972, provides that service members are required to serve additional service for lost time.  Lost time is essentially defined in the statute as time served in a deserter status, time absent from a unit without proper authority for more than 1 day, time in excess of 1 day in civilian or military confinement or for time an individual is unable to perform duty for more than 1 day due to intemperate use of drugs or alcohol.  Army regulations require that this time be shown on DD Forms 214 (Certificate of Release or Discharge from Active Duty), whether the time is served or not.  

20.  Army Regulation 635-5, then in effect, provided the policy and procedures for the preparation of separation documents at the completion of a soldier's contracted period of active service.  A DD Form 214 and an Honorable Discharge (DD Form 256a) would be issued to a soldier at the completion of each active duty period of service.  

CONCLUSIONS:

1.  The evidence of record shows that the applicant returned to the United States on 23 November 1970 at the completion of his overseas assignment in the RVN without military orders to a new duty station.  He was authorized 45 days leave, until 6 January 1971. 

2.  He was issued specific instructions requiring him to call in to Oakland for reassignment instructions if he did not receive any within 10 days.  Further, if he did not receive orders by the completion of his leave, he was instructed, in writing to report to the nearest military installation for further processing.

3.  While the applicant claims that he tried to contact "the authorities," he provides no evidence to this effect.  Further, it is known that he was at Oakland, California on 23 December 1970 when he received a partial pay of $534.00.  

4.  However, there also is no evidence that the Army ever tried to contact the individual at his leave address or declare him AWOL or to drop him from the Rolls of the Army.  Therefore, the Board finds that the Army lost accountability of the applicant as a member of the Army on and after 6 January 1971.

5.  Accordingly, the Board concludes that the applicant is entitled to have credit for completion of his enlistment without penalty.  However, since the applicant did not perform any military duties, i.e. earn any pay, it would not be appropriate to authorize him pay and allowances between 6 January 1971 and his scheduled separation date from active duty in May 1973, when he completed his 3 year reenlistment obligation.  

6.  Normally, the applicant's expiration of term of service (ETS) would have been 
11 May 1973, 3 years after his reenlistment on 12 May 1970.  However, he also had 6 days lost time due to being AWOL from 30 June through 5 July 1970 and his ETS would need to be extended until 18 May 1973 to make up for the lost time in accordance with Federal statute and Army regulations.  

7.  Therefore, it would be appropriate to place the applicant on excess leave, without pay and allowances, from 6 January 1971 through 18 May 1973.  On that date, he should be honorably discharged from the Army, by authority of the Secretary of the Army, in accordance with chapter 5, Army Regulation 635-200. 

8.  Even though he had a further military obligation until July 1976, at the end of his 6 year military obligation, no useful purpose would be served at this late date to credit him with 26 months of inactive military service.  

9.  It also would be appropriate to issue the applicant a DD Form 214 and an Honorable Discharge Certificate for the active duty period 12 May 1970 through
18 May 1973.  Six days lost time from 30 June-6 July 1970 will be shown on the DD Form 214.  

10.  Further, his DD Form 214 should show award of the ARCOM, three BSS for wear on the VSM, the RVNCM and the Vietnam Gallantry Cross with Palm Unit Citation.  

11.  However, the Board concludes that the applicant is not entitled to the award of the Good Conduct Medal.  During his first 3 years of service, he had two periods of AWOL totaling 8 days and he failed to return to military control in January 1971 at the completion of his military leave.  These actions were sufficient to preclude the award  of the Good Conduct Medal.

12.  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:

a.  that the individual concerned was placed on excess leave, without entitlement to pay and allowances from 6 January 1971 until 18 May 1973;  

b.  that on 18 May 1973, the individual concerned was honorably discharged from the Army, without further military obligation, under the provisions of chapter 5, Army Regulation 635-200, by direction of the Secretary of the Army; and   
	c.  that an Honorable Discharge Certificate be issued to the individual concerned for the active duty period 12 May 1970-18 May 1973.   

2.  That upon completion of the above actions, that a DD Form 214 be prepared incorporating the personnel and administrative data required to show that the applicant served for 3 years active service from 12 May 1970 through l8 May 1973, that he had 6 days lost time, that he earned several awards and decorations and that his MOS was 76A.  

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

BOARD VOTE:  

__mkp___  __jhk___  __wah___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    Margaret K. Patterson  
		        CHAIRPERSON

INDEX

CASE ID	AR2000037428	
SUFFIX		
RECON		
DATE BOARDED	20001128	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19730518	
DISCHARGE AUTHORITY	AR 635-200, CH 5	
DISCHARGE REASON	A12.00	
BOARD DECISION	GRANT IN PART	
REVIEW AUTHORITY	DASA	
ISSUES         1.	144.00	
2.	A01.02	
3.	A01.14	
4.	A01.44	
5.	A92.18	
6.	A92.00