PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           28 November 2000
	DOCKET NUMBER:   AR2000042619

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Ernest W. Lutz Jr.		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 effect, that his general discharge (GD) be upgraded to a fully honorable discharge (HD) and correction of his separation document to show pay grade E-6.   

3.  The applicant made no contentions.  He submits a copy of his DD Form 
214 (Report of Separation from Active Duty) and a copy of a Letter of Commendation, dated 8 August 1973.

4.  The applicant’s military records show that prior to the period of service under review, he had three periods of honorable service in the Regular Army (RA) from 
26 November 1958-21 December 1970.  During these periods of service, he served in the Republic of Vietnam (RVN) from 5 May 1965-17 April 1966 and from 10 July 1968-9 July 1969.

5.  On 11 November 1968, he was promoted to the rank of staff sergeant pay grade E-6, which was the highest rank that he achieved and he maintained that rank until he was discharged.

6.  On 22 December 1970, he reenlisted for 6 years in the RA in military occupational specialty (MOS) 11B (Infantryman).  He served in the RVN from
28 August 1972-7 February 1973 and he served in Thailand from 8 February 
1973-18 August 1973.  On 17 September 1973, he was assigned to Fort Bragg, North Carolina.

7.  On 27 January 1974, he went absent without leave (AWOL) from Fort Bragg and he remained AWOL until civilian authorities at Port Huron, Michigan apprehended him on 1 December 1978. 

8.  On 12 December 1978, court-martial charges were preferred against him for the above period of AWOL.  On 14 December 1978, he consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation 
635-200, for the good of the service, in lieu of trial by court-martial.  He was advised that the offense for which he was charged could lead to a UOTHC discharge.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UOTHC discharge.  He submitted a statement in his own behalf in which he contended that he was fed up with the Army and he wished to be discharged.

9.  On unknown dates, both the applicant’s unit and intermediate commanders recommended separation with an HD.  They cited his three (sic) tours of duty in the RVN and Thailand and the awards that he had received that demonstrated his meritorious performance of duty.

10.  On 18 January 1979, the appropriate authority approved the applicant’s request for discharge and directed the issuance of a GD in accordance with chapter 10, Army Regulation 635-200.  He was not reduced to pay grade E-1.

11.  On 12 March 1979, the applicant’s DD Form 214 shows that he was discharged under the provisions of chapter 13-4c, Army Regulation 635-200, for unsuitability-apathy, defective attitude or inability to expend effort constructively, with a GD.  His DD Form 214 shows in Item 6a and 6b that his rank was “PV1” and his pay grade was “E1.”  He had completed 3 years, 4 months and 17 days of active military service on the enlistment under review.  Subsequent to his normal expiration of term of service he had 709 days lost time due to being AWOL.  He also had completed 
15 years, 5 months and 13 days of prior service. 

12.  The available records show that he was awarded the Bronze Star Medal with one Oak Leaf Cluster (OLC), the Air Medal, the Army Commendation Medal with 
V Device, the Purple Heart with two OLCs, the Good Conduct Medal (three awards), the National Defense Service Medal, the Vietnam Service Medal with two bronze stars and one silver service star (denoting seven campaigns), the Combat Infantryman Badge, the Republic of Vietnam Campaign Ribbon with 60 Device, four Overseas Service Bars, the Drivers Badge, the Parachutist Badge, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

13.  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 an HD or a GD is authorized, a UOTHC discharge is normally considered appropriate.  A GD is considered appropriate only if the soldier’s overall record of service merits such a characterization of service. 

14.  Army Regulation 600-200, then in effect, prescribed policies governing promotion and reduction of Army enlisted personnel.  Paragraph 8-11, in pertinent part, stated that when a soldier receives a UOTHC discharge, the soldier will be automatically reduced to the lowest enlisted grade.  

15.  Army Regulation 635-200, in effect at that time, sets forth the basic authority for the separation of enlisted personnel from active duty.  The regulation provided, in pertinent part, that commanders would separate a member when, in the commander's judgment it was clearly established that the member would not develop sufficiently to become a satisfactory soldier.  Soldiers could be separated for unsuitability, to include apathy, and for unfitness due to misconduct.  Soldiers being separated for unsuitability could be given an HD or a GD based on their overall record of service.  Soldiers being separated for unfitness or misconduct would be given an undesirable discharge, unless their overall record of service was so meritorious as to warrant an HD or a GD.  

16.  On 14 October 1982, the Army Discharge Review Board (ADRB) administratively changed the reason of the applicant’s discharge from “unsuitability–apathy, deceptive attitude or inability to expend effort constructively” under the provisions of chapter 13, Army Regulation 635-200 to an “administrative discharge, conduct triable by court martial” under the provisions of chapter 10, Army Regulation 635-200.  No change was made in his separation rank/pay grade.

17.  Title 10, United States Code, Section 1552, provides the basis for the Secretary of the Army and this Board to correct military records.  Pertinent parts of that law provide that the Secretary of the Army corrects military records when it is found necessary by the Board to correct an error or remove an injustice.  Corrections to military records may be made only if the correction is favorable to the person concerned.

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

CONCLUSIONS:

1.  This Board concludes that the applicant’s approved discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial was proper and equitable. 

2.  However, the Board notes that the applicant was actually discharged under the provisions of the chapter 13, Army Regulation 635-200 for unsuitability-apathy, defective attitude or inability to expend effort constructively which was the wrong separation authority and reason.  

3.  The Board also notes that the ADRB administratively changed the applicant’s discharge authority to chapter 10, Army Regulation 635-200.  However, the ADRB action made the applicant’s record more unfavorable than the previous record when it changed his reason for discharge to “conduct triable by court martial.”  The law currently in effect states that a record should be changed only when the action is more favorable to the person concerned.

4.  Therefore, this Board determined that the applicant’s reason for discharge should be changed to Secretarial Authority.  However, there is no basis to change the characterization of his service as originally approved by the separation authority in March 1979.

5.  The Board also notes that the separation authority did not direct reduction of the applicant’s pay grade to pay grade E-1.  Therefore, the Board concludes that it would be appropriate to restore the applicant’s rank to staff sergeant/pay grade E-6, the rank/pay grade he held at the time of discharge, with a date of rank from 11 November 1968.

6.  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:

a.  by showing that the DD Form 214 that the individual concerned received on 12 March 1979 and that the DD Form 215 (Correction to DD Form 214), received by the individual concerned on 8 November 1982 are void and without force or effect; 

b.  by issuing to the individual concerned a new DD Form 214 from the Army of the United States, that shows he was discharged under the provisions of chapter 5, Army Regulation 635-200, by reason of Secretarial Authority with a GD on 12 March 1979.

c.  by showing that the individual concerned was discharged on 12 March 1979 in the rank of staff sergeant, pay grade E-6, with a date of rank from
11 November 1968.

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

BOARD VOTE:  

__mkp___  __ewl___  __wah __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    _Margaret K. Patterson_
		        CHAIRPERSON

INDEX

CASE ID	AR2000042619	
SUFFIX		
RECON		
DATE BOARDED	20001128	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19790312	
DISCHARGE AUTHORITY		
DISCHARGE REASON	A70.00	
BOARD DECISION	(Partial GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	144.000	
2.		
3.		
4.		
5.		
6.