PROCEEDINGS

	IN THE CASE OF:    

	BOARD DATE:           23 January 2003                  
	DOCKET NUMBER:   AR2002074203

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Patrick H. McGann		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 upgrade of the discharge of her late husband, the deceased former service member (FSM).

3.  The applicant states that the letter she wrote for her husband, because he was too weak to write it himself, explains what happened to him.  Personal problems stemming from the forced separation from his pregnant girlfriend exacerbated his immature thinking.  After he returned from Vietnam, immature thinking led him to choose absence without leave (AWOL) rather than go overseas again.  He felt he had already done his duty by serving two assignments in Vietnam.  He has had health problems, a stillborn child and cancer that may be linked to his exposure to Agent Orange.  His colon cancer has metastasized to the rest of his organs.  The applicant also submits numerous letters of support to show that the FSM's post service behavior and conduct has been so exemplary that it outweighs the misconduct of record.  

4.  The FSM's military records show that he enlisted as a 20½ year old, high school graduate and entered active duty on 5 July 1968.  He completed training as an engine and power train mechanic and qualified for the Marksman Qualification Badge with Rifle Bar.  On 24 January 1969 he was assigned to the 549th Maintenance Company in Vietnam.  He was reduced to pay grade E-2 on 25 August 1969 for failure to obey an order (the only offense of record while he was in Vietnam).  He was advanced back to pay grade E-3 on 25 October 1969. The company commander strongly endorsed the FSM's October 1969 request for transfer and extension in Vietnam.  That officer stated that, since the August reduction in rank, the FSM's conduct and performance had been outstanding.  On 11 February 1970 the FSM was transferred to the 9th Transportation Company and was advanced to pay grade E-4 on 15 August 1970.  He returned to the United States on 3 September 1970.  Following 30 days leave, he was to report to the Overseas Replacement Station, Fort Dix, New Jersey for further assignment to Germany to complete the remaining 9 months of his enlistment.

5.  The FSM was absent without leave (AWOL) from 16 October to 16 November 1970.  The FSM waived consultation with counsel and nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice was recommended.  The NJP is not of record, but the FSM is subsequently referred to as a private first class (E-3).  He was then AWOL from 25 November 1970 to 3 July 1971 and from 4 July to 23 October 1971.  

6.  The details of his elimination from the service are not of record, however, on 29 November 1971, he was separated in pay grade E-1 under Army Regulation 635-200, chapter 10 with an undesirable discharge.  His DD Form 214 (Report of Transfer or Discharge) credits him with 2 years 4 months and 20 days of service, 366 days lost time and no foreign or overseas service.  It lists no authorized awards. 

7.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

8.  On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  The above criteria were designated primary criteria.  Other factors (secondary criteria), including possible personal problems that may have contributed to the acts that led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.
 
9.  In October 1977, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

10.  Army Pamphlet 672-3 (Unit Citation and Campaign Register) indicates that the 549th Maintenance Company was awarded the Meritorious Unit Citation for the period 1 November 1968 to 1 May 1969 and the 9th Transportation Company 
received the award for the period 1 November 1969 to 1 March 1971.  

11.  Army Regulation 600-8-22 provides that, except when numerals are authorized such as with the Air Medal, an Oak Leaf Cluster is awarded and worn in lieu of subsequent awards of most personal decorations and unit citations.  

12.  The pamphlet shows that the 9th Transportation Company was awarded the RVN Gallantry Cross with Palm Unit Citation for the period 29 April to 30 
June 1970 and the Republic of Vietnam (RVN) Civil Actions Honor Medal First Class Unit Citation, for the period 30 June 1969 to 30 June 1970.  

13.  Army Regulation 600-8-22 also authorizes a bronze service star, based on qualifying service, for each designated campaign listed in Appendix B of the regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal.  A silver service star is authorized in lieu of five bronze service stars.  The regulation also lists the designated campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal.  These include:  Counteroffensive Phase VI, ending on 22 February 1969; Tet 69 Counteroffensive, ending on 8 June 1969; Vietnam Summer-Fall 1969, ending on 31 October 1969; Vietnam Winter-Spring 1970; ending on 30 April 1970; DA Sanctuary Counteroffensive 1970 ending on 30 June 1970; and the Counteroffensive Phase VII, ending on 30 June 1971.

14.  The regulation also provides, in pertinent part, that the National Defense Service Medal was awarded to soldiers who served honorably on active duty between 1 January 1961 and 14 August 1974 and the Vietnam Campaign Medal with 1960 device was awarded by the Republic of Vietnam to members of the armed forces who served at least 6 months in Vietnam or who, because of wounds or capture were prevented from serving the required 6 months.

15.  The letters of support submitted by the applicant to substantiate her implied argument that the FSM's post service conduct mitigates his misconduct are as follows:
	
•  Eighteen, fellow employees, supervisors and union leaders describe the FSM's behavior, work ethic and character.  These include:

A co-worker reports that he met the FSM in 1979.  He knew that if things went wrong with a job the FSM would be there for him.  He trusted the FSM with his life.  The FSM was more than a friend, he was like a brother.  He was a deeply religious man and a Sunday school teacher.  Although some of his children had problems he never gave up on them.  The past 4 years have been tough on the FSM and his family.  However, he never complained, in part, because two other fellow workers were also battling cancer.  

Another co-worker writes that he knew the FSM for 14 years and that they worked on the same pipefitting crew for nearly 5 years.  The FSM was a hard working and conscientious individual of integrity.  He took his work seriously and set high personal standards.  The other members of the crew could depend on him to do his share.

A fellow union member describes him as a conscientious hard working individual who never backed down from a challenge.  He was devoted to his family and his church and proud to have served his country.

Yet another writes that he worked with the FSM for a number of years.  He was a competent, caring religious man who was highly thought of.

A former supervisor describes the FSM as a professional tradesman and an accomplished technical planner.  He was extremely dedicated and reliable, a top performer and a stabilizing influence in the department.  He maintained a professional but personable approach to work and was always a pleasure to be around.  He is missed on a regular basis.

A friend and co-worker writes that the FSM was level-headed, patriotic and a religious man with good morals.  He is missed very much by his co-workers.

A 25 January 2001 letter from a fellow employee reports that he met the FSM in 1980 and knew him to be positive and encouraging, always sincere and honest.  He was loyal to his family and friends and loved God and this country.  He was dedicated, yet balanced.  He was always trustworthy and giving of himself.  Even when he knew he was terminally ill, he continued to be a cheerful person who contributed to his family, friends and employer.

Another states that he met the FSM in 1988 and that, although he was mostly soft-spoken, his actions spoke louder than his words.  He recalls an incident in which the applicant relinquished his supervisory position to physically complete a job that would have otherwise have had to been contracted out.  He considers the FSM the toughest individual he has known.  The FSM fought a difficult battle and never complained.  

•  His mother-in-law writes that their daughter, the applicant, met the FSM while they attending college in 1978.  He was divorced and had three children who were his greatest concern.  Within 6 months of their wedding, the children from the first marriage came to live with them.  They had three more of their own. The children were always top priority.  The FSM was forever friendly, loving and mannerly.  He was, "Very well aware of his position as husband, father, citizen and member of the Church of Jesus Christ of the Latter-day Saints."  They never knew of the difficulty the FSM had in the Army until a few weeks before he died,  It was then that he asked that they help his wife upgrade his discharge.  She states, "I am sixty-six years old.  In my opinion, [the FSM] was one of the best sons-in-law, husband, father, church member and American citizen I have known."

•  The FSM's brother writes, "I remember he was struggling with many things, one of which was to find himself.  He had gotten a young girl pregnant after high school, was very much in love and wanted to marry her.  The parents of the girl, especially her father, were violently opposed to the marriage.  He felt that [the FSM] should leave the area where we grew up, as his daughter had done.  The girl went to an unwed mother's home and [the FSM] chose to join the Army.  He and the mother of his child continued to communicate.  After being in the Army for a short time the mother wrote to tell him the child was born.  He wanted so much to be 

there.  He wasn't able to see his son and this caused him great distress.  The child was put up for adoption and [the FSM's] emotional well being became fragile.  He struggled with drinking, depression and drugs.…It wasn't until several years after [the FSM] was discharged from the Army that he finally started putting his life back together.  It was a long uphill battle for him but he found full time employment, married, had children and invited God into his life.  [The FSM] lived his life as an example to his wife, children, brothers, sister and fellowmen."

•  The applicant writes of the 22 years that she knew her late husband, the FSM,  "the man of thirty was still learning and growing…the man of forty knew what he wanted out of life and finely…the man of fifty was a giant of a man who had bettered himself and made peace with God and is asking for peace with his country." 

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge was commensurate with his overall record.

2.  The FSM's service of more than 24 months of honorable service, his completion of a tour of duty in Southeast Asia and his receipt of military awards all qualified him for relief under the SDRP.  The Army's failure to review his discharge under that program precluded the possibility that it would be affirmed under uniform standards.  Whether it would have been or not is speculation, but this situation adds a degree of impropriety that militates for the requested relief.

3.  The Board concludes that the respect and esteem expressed in the supporting letters indicates that the FSM's post service behavior does mitigate the offenses of record and that, taken together with the redeeming aspects of his service, indicate that the undesirable discharge is now inequitable and should be upgraded to a general discharge.

4.  However, the FSM's misconduct, 366 days AWOL, precludes greater relief in the form of an honorable discharge.

5.  The applicant qualified for or was awarded the National Defense Service Medal, the Vietnam Service Medal with one silver service star, the Meritorious Unit Citation with one Oak Leaf Cluster, the RVN Gallantry Cross with Palm Unit Citation, the RVN Civil Actions Honor Medal First Class Unit Citation, the Vietnam Campaign Medal with 1960 device and the Marksman Qualification Badge with Rifle Bar.  Continued failure to list them on his DD Form 214 is a correctable error.

6.  In view of the foregoing findings and conclusions, correcting the FSM's records as recommended below will correct an error and rectify an injustice. 

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the 29 November 1972 undesirable discharge currently held by the individual concerned, by issuing him a general discharge under honorable conditions of the same date and by showing that his authorized awards consist of the National Defense Service Medal, the Vietnam Service Medal with one silver service star, the Meritorious Unit Citation with one Oak Leaf Cluster, the RVN Gallantry Cross with Palm Unit Citation, the RVN Civil Actions Honor Medal First Class Unit Citation, the Vietnam Campaign Medal with 1960 device and the Marksman Qualification Badge with Rifle Bar.  

BOARD VOTE:  

_KAN___  __GJW__  ___PHM_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002074203	
SUFFIX		
RECON		
DATE BOARDED	20030123	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19711129	
DISCHARGE AUTHORITY	AR635-200, ch 10 . . . . .  	
DISCHARGE REASON	A70.00	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	A92.08	
2.	A92.22	
3.		
4.		
5.		
6.