PROCEEDINGS


         IN THE CASE OF:

         BOARD DATE: 13 May 1998
         DOCKET NUMBER: AC97-10473



         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. The following members, a quorum, were present:

Ms.	Joann H. Langston		Chairperson
Mr.	Thomas N. Kuhn		Member
Ms.	Shirley L. Powell		Member

         Also present, without vote, were:

Mr.	Loren G. Harrell		Director
Mr.	Joseph A. Adriance		Analyst

         The applicant and counsel if any, did not appear before the Board.

         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)

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.

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2. The applicant requests in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

3. The applicant states in effect, that he went AWOL because his father had terminal cancer and he felt he was needed at home.

4. The applicant’s military records show that on 12 September 1968 the applicant was inducted into the Army of the United States for 2 years at the age of 25. He successfully completed basic training at Fort Benning, Georgia and advanced individual training (AIT) at Fort Huachuca, Arizona. Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic) and assigned to Overseas Replacement Station, Oakland, California for further assignment to the Republic of Vietnam.

5. On 12 October 1968 while still in basic training the applicant applied for a hardship discharge based on his parents being in old age and in poor health, his father was suffering from terminal cancer. He went on to say that his parents lived in the country and relied on him for transportation; in addition, the applicant indicated his parents had no one else to rely on but him and that they had no other way to get to town to see their doctor or to conduct other needed business. The hardship discharge packet included 11 supporting letters from the applicant’s mother; five neighbors; two doctors; his pastor; and his employer all attesting to his father’s illness and the family’s need to have him home.

6. The applicant’s company commander, battalion commander, and brigade commander all recommended approval of his application for hardship discharge and indicated they believed it was necessary for the applicant to be at home to care for the health and welfare of his parents, take care of their farm, and assist with the family’s financial hardships. On 26 December 1968 the adjutant general (AG), acting on behalf of the commander, disapproved the application for hardship discharge and indicated that to qualify for a hardship discharge the applicant’s family would have had to be enduring conditions of undue and genuine hardship which had arisen after, or as a result of the applicant’s entering active military service. The AG further commented that the hardship presented by the applicant was not significantly different from other families with a member in the military service.

7. On 27 February 1969 while in AIT the applicant reapplied for a hardship discharge based on the same reasons indicated in the preceding paragraph. The applicant further justified his request with the statement that he had been taking care of his parents and assisting in working their farm since he was old enough to do so. He also commented that his siblings could not assist because they resided long distances away from his parents and that they had their own families to take care of. He also commented that his parents income was not sufficient to hire help for the farm and that his income in service was insufficient to provide financial assistance to his parents through an allotment. This application was denied by the applicant’s AIT school commander on the basis that his parents could rent their farm and alleviate their hardship conditions.

8. The applicant went AWOL, when he failed to report to the overseas replacement station at Oakland, California on 2 May 1969, and remained away until 31 July 1970. A court-martial charge for violation of Article 86 for this AWOL period was preferred and on 27 August 1980, the applicant voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, under the provisions of chapter 10 of AR 635-200. Enclosed with his request the applicant submitted a statement in his own behalf which commented that he entered active duty after being advised he could no longer continue his hardship deferment but that once on active duty he could gain assistance in applying for a hardship discharge to get out. The applicant further stated that after he had been denied a hardship discharge twice he saw no alternative but to go home and assist his family. While AWOL he lived at the family farm and took care of his family the best he could and his parents would not have been able to keep up the farm without his assistance. His mother was suffering from a heart condition, and his father’s health continued to deteriorate until he died from the cancer on 19 June 1970.

9. On 5 October 1970 the applicant’s unit commander recommended approval of the applicant’s request for discharge for the good of the service, in lieu of trial by court-martial. In his endorsement the unit commander indicated that he had personal knowledge of the case and that the applicant’s AWOL was a direct result of no one being capable of maintaining the family’s 100 acre farm; his wife was pregnant; his mother disabled; and his father was suffering from terminal cancer from which he died on 19 June 1970.

10. On 6 October 1970 appropriate authority approved the applicant's request for discharge and directed issuance of a discharge UD. Accordingly, on
22 October 1970 the applicant was discharged after completing 10 months and 12 days of active military service and accruing 455 days of time lost due to AWOL.

11. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12. 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 are preferred, submit a request for discharge for the good of the service in lieu of trial by court martial.

CONCLUSIONS:

1. The applicant’s voluntary request for separation under the provisions of chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with the applicable regulations. There is no indication that the request was made under duress, or that the discharge process contained procedural errors that could have jeopardized his rights.

2. While the Board cannot condone the applicant’s AWOL , consideration should be given to the fact that his misconduct was strictly military in nature and not a serious crime against society.

3. In retrospect, even though his initial application for hardship discharge was denied, there is reason to believe that given the applicant’s justification, and the recommendations of his company, battalion, and brigade commanders, that his request for hardship discharge warranted approval. Additionally, it appears that the alternative given by his AIT commander, in the second denial of his second request for hardship discharge, that the applicant’s parents rent their farm was arbitrary and unduly harsh given the age, health, and financial situation of the applicant’s parents.

4. In view of the foregoing, the continuation of the stigma of an undesirable discharge is unjust. It would be equitable now to correct his records to show that he was discharged with a general discharge.

5. While it may now be equitable to correct his records to show that he was discharged under honorable conditions, in view of the applicant’s extensive period of AWOL and his decision to accept discharge, in lieu of trial by court-martial, his record is not considered sufficiently meritorious to warrant a fully honorable discharge.

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 individual concerned was separated from the service with an General Discharge Certificate on 22 October 1970.

2. That the Department of the Army issue to the individual concerned a General Discharge Certificate from the Army of the United States, dated 22 October 1970, in lieu of the undesirable discharge of the same date now held by him.

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

BOARD VOTE:

________ ________ ________ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON