MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 April l999     
	DOCKET NUMBER:   AR1999015587

	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Christopher J. Prosser		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:  In effect, upgrade of his undesirable discharge (UD) to a fully honorable discharge (HD).  

APPLICANT STATES:  In essence, that he has made a good post service adjustment and is a productive member of society.  His wife and family were experiencing severe problems while he was in the Republic of Vietnam  (RVN) and his wife lost her first baby during a cesarean birth procedure.  He tried to get his tour curtailed while in the RVN, but he never received an answer.  He completed his tour in the RVN, but went AWOL afterwards to be with his wife.  They are still married.  He regrets going AWOL to this time and requests that the Board compassionately consider his case.  He submits letters from his pastor and the local police chief (in Spanish) attesting to his good post service adjustment, and a copy of his request for a curtailment of his oversea tour in the RVN.  

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

On 7 October 1965, the applicant was inducted into the Army of the United States for 2 years, at age 21, with 9 years of formal education.  He was initially trained in military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman) and subsequently, after arrival in the RVN, in MOS 63H (Automotive Repairman).  He was assigned to duties in the RVN on l8 May 1966.  He was advanced to pay grade E-3 on 28 May 1966.

On 10 September 1966, he received nonjudicial punishment (NJP) under the summarized procedures of Article l5, Uniform Code of Military Justice, for failure to go to his appointed place of duty on 4 September 1966.  He received an oral reprimand.

On 14 October 1966, he received a summary court-martial for disobeying a lawful order of a noncommissioned officer to board a truck to return to his base camp on 1 October 1966.  He was sentenced to be reduced to pay grade E-2, to forfeit $60.00 pay, and to be restricted to his place of duty for 25 days.  

He was advanced to pay grade E-3 again on 10 December 1966.  On 1 March 1966, he claims that he submitted a request for curtailment of his overseas tour, because of the illness of his wife.  A DA Form 1049 (Personnel Action) form is with his application, but there is no evidence in his records that it was ever acted upon.

He returned to the United States at the completion of his normal oversea tour on 24 May 1967.  He was placed on 30 days leave, but failed to return to Fort George G. Meade, Maryland, his assigned installation on 6 July 1967, at the completion of his period of leave.  He remained AWOL until he turned himself in to military authorities on 1 September in Puerto Rico.  He was in the hands of civil authorities, pending return to military control, when he again went AWOL on 5 September 1968.  He remained AWOL until 14 April 1971, when he voluntarily returned to military control at Fort Buchanan, Puerto Rico.  He was then transferred to the Personnel Control Facility (PCF) at Ft. Meade.   

On 29 April 1971, court-martial charges were preferred against the applicant for AWOL from 5 September 1968 through 14 April 1971.  He consulted with counsel on the same date 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.  In this request he stated that he understood that he would receive a discharge under other than honorable conditions, and would receive a UD, that he would be ineligible for many or all benefits administered by the Veterans Administration and other benefits administered under State and Federal law.  He did not submit a statement in his own behalf.

On 6 May 1971, the applicant was admitted to Kimbrough Army Hospital at 
Ft. Meade for swelling in his left leg.  He underwent testing and was found to be suffering from deep iliofemoral thrombophlebitis of the left leg.  He was treated and released on 8 June back to the PCF, but was almost immediately rehospitalized for a flair-up of the swelling and pain in his left leg.  

On 16 June 1971, the separation authority approved the request for discharge and directed that the applicant be discharged with a UD under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  

On 16 July 1971, at the request of the applicant and a physician, his approved discharge was withdrawn by the separation authority based upon his medical condition.

On 22 July 1971, he underwent a Medical Evaluation Board (MEBD) proceedings and was found unfit for duty due to  diagnoses of iliofemoral thrombophlebitis of both the left and the right leg (the latter which he was diagnosed with and treated for in a civilian medical facility while he was AWOL in 1969, to include removal of blood clots from his leg); postoperative ligation of inferior vena cava, done elsewhere; and post phlebitis syndrome and post ligation syndrome, right and left lower extremities.  The proceedings were approved on 6 August 1971 by the hospital commander, and the applicant concurred with the proceedings on 
9 August 1971.  

On 10 August 1971, the MEBD proceedings were returned by the hospital registrar to the separation authority to determine whether the applicant was to be processed through disability or administrative channels due to his excessive bad time, in accordance with Army Regulation 635-40, chapter 7, paragraph 1-4e, then in effect.

On an unknown date, the results of the applicant’s MEBD were referred to the US Army Central Physical Evaluation Board (PEB) at Walter Reed Army Medical Center.  On 24 August 1971, the PEB returned the results to Kimbrough Army Hospital with instructions to obtain a signed decision of the general court-martial convening (separation) authority approving the processing of the case through the US Army Physical Disability Processing System in accordance with paragraph 1-4e, Army Regulation 635-40.  

On 30 August 1971, the installation requested a determination whether or not the applicant’s physical disability was a cause or substantial contributing cause to the extended period of AWOL.  On 3l August 1971, the medical authorities responded that his physical disability was not a cause or a substantial contributing cause to his AWOL.  

On 16 September 1971, the applicant again 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 again did not submit a statement in his own behalf.  

On 5 October 1971, the separation authority approved the discharge and directed the separation of the applicant with a UD 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 credited with 2 years, 2 months and 17 days creditable service and he had 93 days lost time prior to the expiration of his term of service (ETS) (6 July-6 October 1967) and 1284 days lost time after his ETS (7 October 1967-
14 April 1971).  His awards and decorations included the National Defense Service Medal, the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.  

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 a UD.

Army Regulation 635-40, at paragraph 1-4, specifies that when a soldier is being processed in the US Army Physical Disability Processing System and is also subject to an administrative discharge with an under other than honorable conditions (UOTHC) discharge, previously a UD, their case would be referred to the general court-martial convening authority for a determination as to whether the soldier would be administratively discharged or would be permitted to continue to be processed in the Physical Disability Processing System.  Discharges from the Physical Disability Processing System could either be honorable or general, under honorable conditions.

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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board is not convinced that his personal problems were so severe as to warrant repeated absences from the Army, the first in excess of l year, the second in excess of 2 years.  The Board noted that the applicant completed his tour in the RVN, even if under the extreme pressure he claims he was receiving from his family.  It was only after he returned to Puerto Rico on leave after completion of his tour in the RVN that he failed to return to complete the remainder of his active service obligation (June to October 1967).  The Board is convinced that he had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct which led to the separation action under review.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

5.  The applicant’s good post service adjustment, as evidenced by the letters with his application, is commendable.  However the Board is not convinced that these accomplishments overcame his repeated acts of serious misconduct.  

6.  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

__CJP__  __ESC___  _AMC___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015587	
SUFFIX		
RECON		
DATE BOARDED	19990429	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19711005	
DISCHARGE AUTHORITY	AR635-200, C10 .  .  .  .  .  	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A01.13	
3.	A92.21	
4.	A92.31	
5.	A93.07	
6	A94.07