MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 November 2001
         DOCKET NUMBER: AR2001061669

         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
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Stanley Kelley		Member
Ms. Karen A. Heinz		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)

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APPLICANT REQUESTS: That his undesirable discharge be upgraded to fully honorable, and that his rank of sergeant first class be restored.

APPLICANT STATES: That under current standards he would not have been issued an undesirable discharge. At the time he went absent without leave (AWOL), he was having family and financial difficulties which led to a tremendous amount of stress and depression. He dealt with that stress and depression by using alcoholic beverages, a practice which was known by his coworkers. He did not ask for, nor was he offered, any assistance in dealing with his problems. He contends that his alcohol consumption, along with the stress and depression he was experiencing, adversely affected his thought and reasoning ability when he departed AWOL. He asks the Board to consider his four prior honorable discharges, his 38 months of service in Vietnam, and his awards and decorations, which include the Purple Heart and Bronze Star Medal with Oak Leaf Cluster.

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

He enlisted in the Regular Marine Corps on 12 July 1954, served in Puerto Rico, and was honorably released from active duty on 16 July 1957, in the rank of private.

He enlisted in the Regular Army on 6 August 1962, was awarded the military occupational specialty (MOS) of general supply specialist, served in Korea, was promoted to the rank of sergeant, and was honorably discharged on 10 April 1964, for the purpose of immediate reenlistment. He was later awarded the Purple Heart for wounds he received in Korea on 5 August 1963.

Upon reenlistment, he served in Korea (where he had reenlisted), then Germany (July 1964 to June 1967) and finally Vietnam (February 1968 to August 1969). His MOS was unit and organizational supply specialist and he was promoted to pay grade E-7. While in Vietnam, he served as a supply sergeant. He was honorably discharged on 10 April 1970, for the purpose of again reenlisting. The DD Form 214 he was issued shows that he was awarded the Good Conduct Medal, second award, the Expert Infantryman Badge, the Vietnam Service Medal, 2 overseas bars, the Vietnam Campaign Medal with 1960 device, the Army of Occupation Medal (Berlin), and the Purple Heart (for wounds in Korea).

During this reenlistment he again served in Vietnam from March 1970 to February 1971, as a supply sergeant. He was honorably discharged on 8 December 1972, for the purpose of immediate reenlistment. His DD Form 214 shows that he was awarded the Oak Leaf Cluster to his National Defense



Service Medal, the Good Conduct Medal (3^rd award), three overseas bars, and the Vietnam Service Medal.

On his last reenlistment, he served a final tour in Vietnam from April 1972 to January 1973. While in Vietnam he was a supply advisor and a first sergeant.

On 24 March 1974, the applicant had court-martial charges preferred against him for being Absent Without Leave (AWOL) from 14 September 1973 to 7 March 1974.

On 1 April 1974, the applicant submitted a request for discharge in lieu of trial by court-martial, for the good of the service. In that request, he admitted guilt to the offense for which he was charged and acknowledged that he could receive an undesirable discharge if his request was accepted. He also submitted a letter with that request. In that letter he chronicled his military service. He also detailed how his wife divorced him because of his continued absence due to his service in Vietnam, and how he remarried and had two children with his new wife. He continues that his first wife was awarded a divorce settlement, which required him to pay her sizable amounts of money on an ongoing basis, and how his former wife refused to allow him to see his children. He also recounted how when his former wife discovered that he had remarried, she made false statements to his commanders that he was not paying her the money the court had ordered him to pay. When he returned home after his last tour in Vietnam, he found that his children (with his second wife) didn’t recognize him as their father, but after spending time with them while he was AWOL, they began to recognize him as their father. He said that he was emotionally upset when he departed AWOL because he realized that he could be on the verge of losing his new family the same way as he lost his first family. The applicant concluded “I’ve received many awards, three of which were Bronze Stars, and one of which was a Purple Heart. Under existing conditions it is impossible for me to maintain the standards required from me by the Army. I hope the military will take into consideration my many years of faithful and devoted service, and that I be granted a discharge.”

The Personnel Control Facility (PCF) commander recommended approval of the applicant’s request, stating “Thirteen years of Active Service, two Bronze Star Medal Awards, a Purple Heart, and 38 months in Vietnam, and now the man wants to give up the service. His attitude is completely negative towards






continuing his service obligation. His performance of duty at PCF borders on dereliction of duty and he is, in my opinion, a disgrace to the NCO Corps. His previous duty performance however has been, until he departed AWOL, very creditable. In view of his present attitude and duty performance recommend this man be issued an Undesirable Discharge Certificate.”

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.

The Manual for Courts-Martial, R.C.M. 916, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts.  Mental disease or defect does not otherwise constitute a defense. The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

Army Regulation 611-201, Table 5-1, Code “M”, lists the duties of a first sergeant. These duties include advising the commander on enlisted personnel matters to include duty assignments, promotions and reductions, leave programs, military justice, privileges, awards, welfare and recreational activities, human relations, equal opportunity, and alcohol and drug abuse concerns. The duties also include providing counsel and guidance to subordinate personnel.

The Manual for Courts-Martial, Appendix 12, Maximum Punishment Chart, lists the maximum allowable punishment for over 30 days of AWOL as a dishonorable discharge and 1-year confinement.

The Department of Veterans Affairs, in determining qualifications for benefits administered by that Department under Title 38, US Code, generally holds that an individual who is discharged upon completion of his complete term of





obligated service is eligible for benefits since that separation amounted to a complete and unconditional separation from the service.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The correspondence pertaining to the applicant’s request for discharge clearly shows that his lengthy, honorable service was taken into consideration. Actually, this could be the reason his command accepted his request for discharge instead of convening a court-martial, which could have resulted in his receiving a dishonorable discharge and a year confinement.

2. The Board considers the applicant’s characterization of service in keeping with current Army standards. A prolonged period of AWOL is a serious offense.

3. The applicant states that he was having family and financial difficulties which led to a tremendous amount of stress and depression, which in turn resulted in his alcohol consumption and impaired ability to make decisions. However, the applicant has not submitted any evidence to support those matters of mitigation. The applicant was a senior NCO who was once a first sergeant. He knew, or should have known, that the Army has a host of programs to assist soldiers experiencing social, marital, and substance abuse problems, and how to access and utilize those programs. If nothing else, the applicant could have requested a hardship discharge. That he chose not to pursue any of those avenues of resolution was a matter of choice, not inexperience.

4. The applicant has four prior periods of service for which he was issued a DD Form 214. As such, his undesirable discharge should not be a bar to benefits from the Department of Veterans Affairs.

5. The applicant’s records clearly show that his last period of service was not served honorably or even under honorable conditions. Since this period of service is separate and distinct from his other periods of service, as evidenced by his DD Forms 214, his accomplishments during his other periods of service are not germane to the characterization of his last period of service.









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

__inw____ ___kah __ ___sk __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061669
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011115
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.
2.
3.
4.
5.
6.