PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 June 2002
         DOCKET NUMBER: AR2001062624


         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
Mr. Vic Whitney		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Donald P. Hupman		Member
Ms. Barbara J. Ellis		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.

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2. The applicant requests that his under other than honorable conditions discharge characterization be upgraded to honorable.

3. The applicant states that when he came home from Vietnam his wife had become pregnant from another man. While at Fort Lewis, Washington he requested assistance but did not receive any. He went to look for her and later turned himself in to military authorities. He was a good serviceman until this event.

4. The applicant’s military records show that he enlisted and entered active duty on 23 February 1968. He completed training as an armor crewman and was assigned to Germany. On 23 October 1968, he reenlisted for assignment to Vietnam. He served 19 months in Vietnam as a cannon crewman and supply specialist. He was promoted to the pay grade of E-5 effective 6 July 1970. His DD Form 214 (Report of Transfer or Discharge) with a separation date of 10 November 1970, shows that his authorized awards included the Purple Heart, the Combat Infantryman Badge, the Bronze Star Medal with oak leaf cluster, the Army Commendation Medal with oak leaf cluster, and two awards of the Air Medal.

5. The applicant reenlisted on 11 November 1970. He was punished under Article 15, Uniform Code of Military Justice (UCMJ), on 16 February 1971, for being drunk. He reenlisted for Vietnam again on 12 July 1971. His DD Form 214, with an incorrect separation date of 11 July 1970, shows that he had completed 3 years, 4 months, and 19 days of continuous active duty. The applicant’s second tour of duty in Vietnam lasted for 20 months where he served as a supply sergeant.

6. The applicant was punished under Article 15, UCMJ, on 16 April 1973, for absence from his place of duty and improper duty uniform. The approved punishment included a fine, extra duty, and restriction. He was punished again under Article 15, UCMJ, on 24 April 1973, for being drunk and disorderly in a civilian establishment, improper uniform, and breaking restriction. He was punished with reduction to the pay grade of E-4.

7. The applicant was reported AWOL on 8 May 1973. He returned to military control on 5 January 1975. Neither the court-martial charges nor the applicant’s request for discharge in lieu of trial by court-martial are in the available record. However, a first endorsement to the applicant’s 15 January 1975 request for discharge for the good of the service, states that the applicant was allegedly AWOL from 2 January 1974 to 6 January 1975, and was being recommended for discharge with issuance of an Undesirable Discharge Certificate.



8. The action by the separation authority is not in the available record. However, Special Order Number 38, dated 25 February 1975, shows that the applicant’s discharge was approved under other than honorable conditions effective 3 March 1975.

9. Effective 3 March 1975, the applicant was separated under the authority of Army Regulation 635-200, chapter 10. He had 5 years, 4 months, and 19 days creditable service and 593 days lost time.

10. 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. A discharge under other than honorable conditions is normally considered appropriate.

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

12. The Department of Veterans Affairs (DVA), in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the DVA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service.

13. A U. S. Total Army Personnel Command message, 150800Z February 1995, clarified an earlier message concerning the requirement to add a statement in item 18 of the DD Form 214 concerning a member’s initial term of service. It directed that the following statement would be added to all DD Forms 214 without exception: “Member (has) (has not) completed first term of service.” Normally, a member should not be considered to have completed the first full term of active service if separation occurs prior to the end of the initial contracted period of service. However, if a member reenlists prior to the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment and should be considered to have been completed upon execution of a reenlistment contract. If a soldier has reenlisted, he or she is considered to have completed the first full term of enlistment.






CONCLUSIONS:

1. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his lengthy AWOL offense.

2. The Board is cognizant of the applicant’s prior good service and his 30 months of Vietnam service before he departed AWOL for over one year. The only reason he gave for his AWOL at the time was he had to look for his wife who was pregnant by another man. The Board concludes that is insufficient reason for granting the relief he requests and it would not be appropriate to change the records to show that he was discharged honorably on 3 March 1975.

3. However, it appears that his honorable discharge of 11 July 1970, which should be corrected to show 11 July 1971, should be considered as having been issued as a complete and unconditional separation. Under current standards, if a member reenlists prior to the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment.

4. The circumstances of the applicant’s correct honorable discharge of 11 July 1971, appears to have worked an injustice upon him by depriving him of consideration for certain DVA benefits for the preceding period of service. However, the applicant should understand that the Department of Defense has no jurisdiction over the DVA. The DVA, in accordance with its own policies and regulations, may or may not grant entitlement to benefits based upon the correction recommended below.

5. 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 for the individual concerned be corrected by showing that he was eligible for a complete and unconditional separation from the military service on 11 July 1971.









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

BOARD VOTE:

__ca___ ___dh____ __be___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Celia L. Adolphi__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001062624
SUFFIX
RECON
DATE BOARDED	20020613
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19750303
DISCHARGE AUTHORITY	AR 635-200, CH 10
DISCHARGE REASON	A71.00
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1.	110.02
2.
3.
4.
5.
6.