PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 August 2003     
	DOCKET NUMBER:   AR2003084912

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Regan K. Smith		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 that his undesirable discharge be upgraded to honorable.

3.  The applicant states that his undesirable discharge was the culmination of several mishandled events.  His attention to his wife, who had a severe heart condition, led to his failure to take action earlier.

4.  The applicant’s military records show that he enlisted in the Regular Army     on 21 September 1965 for 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 63B (Wheel Vehicle Repairman).  He was promoted to Specialist Four, E-4 on    8 July 1966.  

5.  On 7 February 1967, the applicant volunteered for assignment to Vietnam.  His request was approved and he was placed on orders to Vietnam with a report date to the port of debarkation of 6 May 1967.  His DA Form 20 (Enlisted Qualification Record) shows he departed absent without leave (AWOL) on 8 May 1967 and returned to military control on 15 May 1968.  It shows he was placed in confinement from 16 through 20 May 1968.

6.  The applicant's conduct and efficiency ratings prior to his departing AWOL were all "excellent" and he had no record of prior disciplinary actions.

7.  On 28 August 1968, the applicant was tried by a summary court-martial of being AWOL from on or about 8 June 1967 until on or about 16 May 1968.  He was found not guilty.

8.  The applicant was again placed on assignment instructions to Vietnam.  On    9 October 1968, he requested deferment as his wife had a severe rheumatic heart disease in which her heart valves were damaged.  He was needed at home because his wife was alone with their 6-month old baby.  A supporting doctor's statement indicated the applicant's wife suffered from moderately severe rheumatic heart disease with aortic and mitral valvular involvement.  His request was not favorably considered in view of a medical evaluation of his request.  He was advised of the disapproval action.

9.  Orders dated 2 November 1968 assigned the applicant to the U. S. Army Overseas Replacement Station, Oakland, CA with a report date of 8 November 1968.

10.  The applicant's DA Form 20 shows he departed AWOL on 8 November 1968.  He was apprehended by the Federal Bureau of Investigation on 12 July 1974.

11.  On 22 July 1974, the applicant completed a separation physical examination and was found qualified for separation.

12.  Court-martial charges were preferred against the applicant charging him with AWOL from on or about 8 November 1968 until on or about 12 July 1974. 

13.  On 17 July 1974, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of an undesirable discharge and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf wherein he stated he had a wife who had a bad heart and he felt he should be home with her and their son.  He also had a lot of bills that need attending to.  He could not adjust to Army life. 

14.  On 1 August 1974, the appropriate authority approved the request and directed the applicant receive an undesirable discharge.

15.  On 21 August 1974, the applicant was discharged with an undesirable discharge, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 2 years, 2 months, and 14 days of creditable active service and had 2,451 days of lost time.  

16.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was not awarded any awards or decorations.  His DA Form 20 shows he was awarded the Expert Qualification Badge with Rifle bar and the National Defense Service Medal.

17.  The Department of Defense Financial Management Regulation states that if a member is acquitted (of absence without leave charges), the acquittal affects only the disciplinary aspects of the absence.  It does not prevent an administrative determination that the member was absent without leave.  If it is not excused as unavoidable, the member forfeits pay and allowances for the period of absence.  This applies even though a court-martial finds the member not guilty of a charge of unauthorized absence.  

18.  Army Regulation 614-200 governs reporting, selection, and assignment of enlisted personnel.  In pertinent part, it states that commanders having general court-martial authority over soldiers submitting requests for deletion or deferment when personal problems are temporary, or installation commanders, may approve, on a one-time basis, deletions for up to 1 year and temporary deferments for up to 90 days.  Reasons that could result in an approved deletion include terminal illness of a family member where death is expected within 1 year and prolonged stay in the hospital of more than 90 days of a family member where the soldier's presence is essential to resolve related problems.  Reasons that could result in an approved deferment include illness of a family member that requires staying in the hospital for less than 90 days and domestic hardship involving a soldier's family, providing the soldier's presence during the deferment period will result in reasonable permanent relief that cannot be achieved by other satisfactory means.  

19.  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.  At the time, an undesirable discharge was normally considered appropriate.

20.  Chapter 6 of Army Regulation 635-200 provides, in pertinent part, for the separation of soldiers because of genuine dependency.  Dependency exists when death or disability of a member of a soldier's immediate family causes that member to rely upon the soldier for principal care or support.  

21.  Army Regulation 635-200 states, in pertinent part, that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

22.  Army Regulation 600-8-22 provides Army policy and criteria concerning individual military decorations.  It states that the National Defense Service Medal is awarded for honorable active service for any period between 27 June 1950 and 27 July 1954, both dates inclusive, between 1 January 1961 and 24 August 1974, both dates inclusive, between 2 August 1990 and 30 November 1995, both dates inclusive, and between 11 September 2001 to a date to be determined.  

CONCLUSIONS:

1.  The Board concludes there is no evidence of Government error in this case but it appears an injustice occurred.

2.  Although the applicant was acquitted of the charges for his first period of extensive AWOL, there is no evidence of record that his AWOL was ever excused as unavoidable.  He provides no evidence to show that it should have been excused as unavoidable.

3.  The Board notes that the applicant had applied for a deferment from assignment to Vietnam for a legitimate family problem.  It appears his request was properly denied (his wife did not have a temporary medical problem with other related family problems that could be resolved within 90 days or even         1 year); however, the Board concludes that he clearly had grounds to request a dependency discharge.  Yet, it appears he was never counseled concerning that option.

4.  While the Board does not condone the misconduct for which the applicant was discharged, the Board concludes that as a matter of compassion his discharge should be upgraded to general under honorable conditions.  The extent of his AWOL does not warrant upgrading his discharge to fully honorable. 

5.  The Board notes that the applicant's DD Form 214 does not reflect that he was awarded the Expert Qualification Badge with Rifle bar or the National Defense Service Medal.  His DD Form 214 should be amended to add these awards.

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 applicant was separated from the service with a General Discharge Under Honorable Conditions Certificate on 21 August 1974.

2.  That the Department issue to the applicant a General Discharge Under Honorable Conditions Certificate from the Army of the United States, dated        21 August 1974, in lieu of the undesirable discharge of the same date now held by him.

3.  That the applicant be issued a new DD Form 214 reflecting the above corrections and showing he was awarded the Expert Qualification Badge with Rifle bar and the National Defense Service Medal.
4.  That so much of the application as pertains to awarding the applicant a fully honorable discharge be denied.

BOARD VOTE:  

__jns___  __rwa___  __rks___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2003084912	
SUFFIX		
RECON		
DATE BOARDED	20030821	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19740821	
DISCHARGE AUTHORITY	AR 635-200, ch 10 	
DISCHARGE REASON	A70.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.