ABCMR Memorandum of                                                             AR2002077269
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 JANUARY 2003                  
	DOCKET NUMBER:   AR2002077269

	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
| Ms. Deborah L. Brantley | | Senior Analyst

  The following members, a quorum, were present:

| Ms. Karol A. Kennedy | | Chairperson
| Mr. Melvin H. Meyer | | Member
| Ms. Tracey L. Pinson | | 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 his discharge be upgraded to honorable, that the reason be changed to "convenience of the government" and that his Reentry Eligibility (RE) Code be changed to RE-1 with a corresponding SPD (Separation Program Designator) Code.

APPLICANT STATES:  In effect, that he was young and immature at the time he accepted a discharge, rather than face the consequences of his actions.  He maintains that his service in Vietnam, awards, prior "Honorable Discharge" and promotion to pay grade E-4 within 17 months is evidence that his discharge should be upgraded.  The applicant states that his ability to serve was impaired by family care problems.  He states that after receiving several letters from his sister regarding his mother's health and financial issues he requested 30 days of leave to go home.  He notes that while he was home he was made to feel guilty about returning to Vietnam and when he reported to Oakland Army Base he requested a hardship discharge or to be reassigned to Fort Carson, Colorado so that he could be closer to his mother.  He states, in effect, that he was not given any assistance by his chain of command and that one document in his file indicates that he was absent without leave from 1 January 1972 until 22 February 1972 when his medical records show otherwise.  The applicant states that since his discharge he has, in effect, been an upstanding member of his community and a caring and loving family man.  In support of his request he submits two self-authored statements, extracts from his service personnel records, and eight letters of support, some signed by multiple individuals, from family and friends.  

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

He enlisted and entered active duty for a period of 3 years on 10 November 1969 at the age of 17, with 11 years of formal education.  A civilian medical statement, completed in July 1969, prior to his enlistment, indicated his parents were living and in good health and that he had seven siblings.

Following completion of training, the applicant was assigned to Germany as a cannoneer.  On 13 August 1970 he was honorably discharged for the purpose of immediate reenlistment.  His reenlistment, for a period of 4 years, included an option to be reassigned to Vietnam.  

The applicant departed Germany in September 1970 and on 2 November 1970 was punished under Article 15 of the Uniformed Code of Military Justice for several days of being absent without leave.  His punishment was imposed at the United States Army Overseas Replacement Station at Fort Lewis, Washington.  

The applicant arrived in Vietnam in November 1970 and was promoted to pay grade E-4 in April 1971.

In June 1971 the applicant voluntarily requested that his overseas tour in Vietnam be extended by 6 months so that he could qualify for an early separation program.  His request was approved.  As part of his request to extend his overseas tour he was also authorized "special leave."  His overseas extension document indicates that his "special leave" was to commence on 14 August 1971.

Documents in his file indicate that he was attached to the United States Army Personnel Center in Oakland, California effective 15 September 1971.  However, because he had not returned to his unit in Vietnam, that unit reported him as being absent without leave effective 20 September.

His service medical records indicate that after his arrival at the United States Army Personnel Center in Oakland, he was seen by medical personnel with a complaint of bilateral hearing loss and knee sprain.  Following consultation with medical officials, the applicant was found "fit for overseas duty."  However, on 
20 September 1971 the applicant was evaluated at the Army Health Clinic after requesting to see a psychiatrist.  The evaluating official concluded that the applicant's problem was "one of financial hardship" and that there was no reason for psychiatric referral.  He was again found fit for duty.  On 27 September 1971 the applicant again requested referral to a psychiatrist but was found fit for duty on both 5 October and 22 October 1971.  

On 19 November 1971 the applicant was reported as being absent without leave from Oakland Army Base in California.  He returned to duty on 9 December 1971.  His records indicate that the commander of the United States Personnel Center at Oakland punished him under Article 15 of the Uniform Code of Military Justice in December 1971.  His punishment included reduction to pay grade E-3 and forfeiture.  The applicant appealed his punishment and on 23 December 1971 the reduction was suspended for 60 days and part of the forfeiture was remitted.

On 31 December 1971 the applicant was again reported as being absent without leave.  However, by this time, the applicant's unit in Vietnam had dropped him from the rolls of the Army.  On 22 February 1972 the applicant surrendered to military authorities at Fort Carson, Colorado.

Although documents associated with the applicant's administrative separation were not in records available to the Board, the applicant's separation document 

indicates that he was discharged under Army Regulation 635-200 for the good of the service on 12 May 1972 "Under Conditions Other Than Honorable."  He received a separation designator code of "246" and a RE code of 3B.  His separation document also indicates that he was in a "non-pay" status (lost time) from 20 September 1971 until 23 February 1972 and that he was separated on temporary finance records.

Although the applicant's records indicate that he was awarded several service ribbons, there is no indication he was ever awarded a personnel decoration while in Vietnam or Europe.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides for the administrative separation for the good of the service.  The separation is voluntary and generally included a statement that the applicant understood the ramifications of a discharge under other than honorable conditions, which he might receive as a result of being discharged for the good of the service.  In pertinent part, Chapter 10 states 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.  A separation program designator code of 246 and a RE code of 3B were considered appropriate, during the period in question.  The applicant was 3 months shy of turning 20 when he was discharged.

The statements submitted in support of the applicant's petition are from family members and friends who attest to the fact that the applicant has been a caring father and family man, that he is well thought of in his community and that he often thinks of others before himself.  The statements were all rendered in 2002.

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.  While the applicant contends that he had received several letters regarding his mother's health and financial situation while in Vietnam, and as such requested leave, he has not submitted any evidence which supports that contention.  In fact, the Board notes that he was granted a "special leave" as part of his request to extend his tour of duty in Vietnam and not because of any family situation.

2.  The evidence available to the Board indicates the applicant was absent without leave on three different occasions, once prior to his initial assignment to Vietnam and twice following completion of his special leave.  The applicant was punished on two separation occasions under Article 15 of the Uniform Code of Military Justice, and was retained at Oakland Army Base for several weeks while seeking medical treatment.  The Board notes that contrary to the applicant's contention, it appears his chain of command was doing everything possible to resolve the applicant's situation by reducing the punishment imposed under one of his Uniform Code of Military Justice actions and by permitting him to seek medical attention for several weeks after he should have returned to Vietnam.

3.  Additionally, although the applicant indicated in his request that he was not absent without leave between January and February 1972, and purports that his medical records would so indicate, the evidence available to the Board indicates the applicant was in fact absent without leave during that period and his medical treatment was received in September and October 1971, not January 1972 as he contends.

4.  In the absence of evidence to the contrary, the applicant's administrative separation is presumed to have been accomplished in accordance with applicable laws and regulations.  The reason, separation program designator code and RE code are all appropriate and there is no evidence which warrant changing any of those items.

5.  The applicant’s contention that he, in effect, became a productive member of society and a good family man, that he served in Vietnam, received several service awards, and was promoted quickly, has been noted.  However, none of those issues, individually or collectively, outweigh the seriousness of the applicant's conduct during a period of hostilities, and do not provide an adequate basis upon which the Board would grant relief as a matter of equity.

6.  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 request requirement.

7.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

8.  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

__KAK __  ___MHM_  __TLP __  DENY APPLICATION

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

INDEX

CASE ID | AR2002077269
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 20030128
TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE | YYYYMMDD
DISCHARGE AUTHORITY | AR .  .  .  .  .
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. | 110.00
2. |
3. |
4. |
5. |
6. |