MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 June 2000
	DOCKET NUMBER:   AR2000038446

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the date he was placed on the Retired List be changed from 31 January 1972 to 31 May 1972.

APPLICANT STATES:  In effect, that while serving his second tour in Vietnam he went on emergency leave to Puerto Rico in December 1971 because his mother had a heart attack.  He goes on to state that it was his intention to remain in the Army for 30 years; however, due to his mother’s poor health, his wife’s poor health, and the difficulty he was having with his 13 year old son at the time, he was forced to submit his request for retirement before he attained 26 years of service.  He further states that he submitted a request for a compassionate reassignment, which was denied by the Department of the Army and he personally called his assignment manager to request to remain in the service in Puerto Rico until he attained 26 years of service and was unjustly denied the opportunity to do so.  He continues by stating that he was given the choice of returning to Vietnam or retiring by 31 January 1972, against his will.  Inasmuch as his back was against the wall, he elected to retire.  He also states that while in Vietnam he was recommended for promotion, however, the recommendation never reached the Department of the Army.  Additionally, he served his country honorably in World War II, Korea, and Vietnam and believes that given the many years of honorable and faithful service he rendered to his country, he should have been allowed to serve until he attained 26 years of service to qualify for his last pay raise.   

EVIDENCE OF RECORD:  The applicant's military records show:

He was inducted at Fort Buchanan, Puerto Rico on 31 October 1945 and served as a truck driver until he was honorably discharged on 28 November 1946. 

On 24 June 1947 he enlisted in the Regular Army for a period of 3 years and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-8 on 12 May 1966.

He served a tour in Vietnam from 1967 to 1968 and upon completion of that tour was assigned to the Advisory Group in San Juan, Puerto Rico.  He remained in Puerto Rico until he was transferred back to Vietnam on 7 August 1971.  At the time of his arrival in Vietnam he indicated that he had a brother stationed in Vietnam who was serving as a sergeant major and he desired to be stationed near him.

Shortly after his arrival in Vietnam (30 August 1971) the applicant was granted emergency leave to Puerto Rico due to the serious illness of his mother.  On 10 September 1971 he was attached to Fort Buchanan for the purpose of submitting a request for a compassionate reassignment.  His request for a compassionate reassignment was denied by the Department of the Army  Compassionate Review Panel on 29 September 1971.
On 7 October 1971 the Department of the Army issued instructions directing that the applicant be attached for an additional period of 30 days for the sole purpose of submitting a retirement application.  The instructions specified that the applicant must submit his application within 30 days and that he must request a retirement effective date within 90 days from the date of submission.

The applicant submitted his Application for Voluntary Retirement (DA Form 2339) on 1 November 1971 and requested a retirement effective date of 1 February 1972.

His request was approved and he was honorably released from active duty in the pay grade of E-8 on 31 January 1972 and was transferred to the USAR Control Group (Retired) effective 1 February 1972.  He had served 25 years, 8 months, and 5 days of total active service.

A review of the applicant’s records revealed a physical examination was conducted for the purpose of retirement on 20 October 1971.  At the time he completed his personal information on the necessary forms he indicated that he had six living siblings ranging from ages 39 to 52.  However, his records do not indicate where they resided.  The applicant was 46 years of age at the time of his retirement.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

2.  While it is unfortunate that the applicant’s compassionate reassignment was disapproved at the time, the applicant has failed to show through the evidence submitted with his application or the evidence of record that his application was unjustly denied or that he was unjustly denied the opportunity to continue to serve on active duty.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s request for a compassionate reassignment was denied in accordance with regulations in effect at the time and that he was afforded the opportunity to submit a request for retirement, due to his exceptional circumstances, rather than returning to his unit in Vietnam. 

4.  While the applicant may feel that he had no choice in the matter at the time, he did in fact have the choices of returning to his unit in Vietnam or voluntarily submitting an application for retirement.  Although he may not have liked the choices available to him, the Department was not required by regulation to allow him to remain in Puerto Rico after it had determined that the circumstances of his case did not meet the regulatory requirements for a compassionate reassignment.

5.  Accordingly, he was properly placed on the Retired list effective 1 February 1972 in accordance with his approved voluntary request for retirement and the applicable regulations in effect at the time. 

6.  While the Board is empathetic to his situation and is appreciative of his many years of service, there is no basis to change his date of retirement in order to allow him to draw Retired Pay for service he did not perform.  To do so would afford him benefits that are not afforded to others in similar circumstances.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___wtm__  __mdm__  ___clg __  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000038446	
SUFFIX		
RECON		
DATE BOARDED	2000/06/27	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  339	136.0100/CHG RET DATE	
2.		
3.		
4.		
5.		
6.