MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 18 JUNE 2002
         DOCKET NUMBER: AR2001063893

         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
Mr. Allen L. Raub		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 Bad Conduct Discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he never confided the true reason for his AWOL (absent without leave) during his general court-martial conviction. He notes that he never appealed "the decision" because he "was needed at home more" and was afraid that an appeal would delay his "getting home."

The applicant states that following release from confinement, after his initial period of AWOL, he agreed to accept an assignment to Vietnam. He states that there was "a certain Major" in Vietnam who "had bad feelings toward" him and told him he (the major) would see to it that his request for a hardship discharge was never approved.

The applicant states that he was granted an emergency leave to be with his spouse, who was "being threatened." He notes that she had been sexually abused as a child, and because of the "threatening phone calls" she was receiving, she "was very close to a nervous breakdown." He states that he submitted a request for a hardship discharge, while temporarily attached to Fort Jackson, South Carolina, but it was denied. He notes that he then received orders to return to Vietnam but the orders were incorrect. He states he was told he could accompany his spouse to Tennessee and that new orders would be issued. The applicant states he never received the new orders, in spite of calling Fort Jackson.

The applicant states that, under the circumstances, he felt he needed to remain with his wife, that they were young, had no idea how to get help, and "simply did the best [they] could."

He states that in the "seventies" he was notified that his discharge could be upgraded if he completed 300 hours of community services. Unfortunately he was unable to do this because of his demanding job and could not risk losing the job because of health benefits needed to provide for his son who "was born with a double-hairlip [sic], cleft gum, and cleft palate."

The applicant states that he would like his discharge upgraded so that he "might be granted V.A. benefits" and "to restore to [him] the honor that was [his] before [he] went AWOL…."

In support of his request he submits a statement from his spouse attesting to her childhood abuse, statements from health professionals, which note that the spouse had been treated for depression, panic disorder, post-traumatic stress disorder, and bi-polar disorder related to childhood abuse. He also submits several other statements from family and friends attesting that he is a good citizen, respected member of the community, and caring individual.
EVIDENCE OF RECORD: The applicant's military records show:

He enlisted and entered active duty on 20 September 1966, one month shy of his 19^th birthday. He had 10 years of formal education at the time he entered active duty and was not married.

The applicant successfully completed basic and advanced individual training and was promoted to pay grade E-2 in January 1967. In February 1967, following completion of training, the applicant was assigned to Vietnam. On 27 February 1967, while enroute to Vietnam, the applicant departed AWOL. He was married in March 1967 to a young woman who, according to other documents in his file, was 15 years old at the time. He returned to military control on 2 September 1967. On 4 October 1967, the applicant was convicted by a special court-martial of AWOL. His sentence included reduction to pay grade E-1 and 6 months confinement. On 20 October 1967 the unexecuted portion of his confinement was suspended for 6 months, and the applicant continued enroute to Vietnam. He arrived in Vietnam in October 1967 and was assigned duties as a wheel vehicle mechanic.

On 18 January 1968, while still assigned to Vietnam, the applicant submitted a request for a hardship discharge. He stated that he was requesting the discharge because his spouse:

"is a very sick person, both physically and mentally. She has a very highly irregular nervous condition. She has tried to commit suicide on two occasions. She has been under doctors [sic] care for as long as we have been married. My parents have kept her for 4 months but have refused to care for her any longer and she is now living with her mother. Her mother has stated my wife can stay there only long enough in order for me to apply for this discharge and get home to take care of my wife. Neither of us has any other relatives or friends she can stay with. I cannot allow my wife to get herself an apartment for she has to be cared after and understood and I have been the only one so far that can."

Included with the applicant's request for the hardship discharge were two letters from physicians, and several statements from family and friends. None of the statements indicated the applicant's spouse had suffered any sort of abuse.

The applicant's chain of command recommended that the applicant's request be denied. His unit commander, a lieutenant colonel, noted in his endorsement that the applicant had indicated, during his initial unit interview, that he "had personal problems." The commander stated that via the Red Cross, the applicant's parents (in Johnson City, Tennessee) indicated they were "both healthy and employed" and that the applicant's spouse had moved to Norfolk, Virginia to live with her sister. The commander noted that the Red Cross then contacted the applicant's spouse in Virginia and reported that "she was healthy and there were no problems." The commander continued his endorsement by noting that it was "apparent" the applicant and his spouse were having "some difficulties with their marriage" but that their problems were "not unlike those common to many service families who are separated for extended periods of time." He concluded by stating that he felt that the applicant's situation did not merit "favorable action at this time" due to the "lack of documentary evidence to substantiate a hardship, and the contradiction between the views of professional doctors and [the applicant's] relatives…."

On 18 February 1968, prior to finalization of the applicant's request for a hardship discharge, he was authorized emergency leave. He was granted a 5 day extension of his leave on 14 March 1968 and on 29 March 1968 was attached to Fort Jackson, South Carolina. On 13 May 1968 the applicant's request for hardship discharge was denied. Orders were issued releasing him from attachment and he was instructed to report to McGuire Air Force Base in New Jersey for "return transportation" to his unit in Vietnam.

The applicant failed to report and was reported as AWOL. Documents in available records indicate the applicant was apprehended by civilian authorities in Johnson City, Tennessee on 26 February 1969 and returned to military control. He departed AWOL again on 23 March 1969, returned to military control on
4 October 1969, and was reported AWOL again on 25 October 1969. He was apprehended by civilian authorities in Tennessee and returned to military control on 19 November 1969.

When charges were preferred, the applicant submitted a requested for discharge under the provisions of Army Regulation 635-200 in lieu of trial by court-martial. In a self-authored statement, the applicant noted that while awaiting disposition of his request for a hardship discharge (the January 1968 request submitted while he was in Vietnam) he was granted emergency leave "in order to help [his] wife and to investigate certain threats made on her life." He merely indicated in his statement that his request was "turned down in May 1968." He noted that since returning to military control he "again applied for a hardship discharge" and that his "family circumstances have changed in that my parents are no longer capable of caring for my wife adequately because of problems with my brother's family and his two children." He noted that his spouse's mother "was disabled and depends upon her son for support." He also related that in August 1969 (while the applicant was in an AWOL status) his spouse gave birth to a baby boy with significant facial birth defects, which would required "about five operations…." He noted that when he returned from Vietnam the "threats upon her life ceased" and that they began again when he returned to military control.

His request for an administrative separation, in lieu of trial by court-martial was denied and on 16 February 1970 he was ultimately convicted by a general court-martial of three counts of AWOL. His sentence included forfeitures, 10 months confinement, reduction to pay grade E-1 and a bad conduct discharge.

On 31 July 1970 the applicant was discharged "under conditions other than honorable" and issued a Bad Conduct Discharge Certificate. At the time of his separation he had 1 year and 25 days of creditable service and more than 1000 days of lost time due to AWOL and confinement.

Although the applicant's records do not contain any documentation concerning the possible upgrade of his discharge it appears he may be referring to Presidential Proclamation 4313, issued on 16 September 1974. The proclamation provided for the issuance of a clemency discharge to certain former soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973. Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights. The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.

Army Regulation 635-200 states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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 Board has considered the applicant’s age at the time of his military service, his current support of family and friends that he is a good citizen and family man, and his contention that the "real" reason for his extended AWOL was his spouse's childhood abuse, none of these factors, either individually or in sum, warrant the relief requested.

2. The Board notes that documents in the applicant's records appear to indicate that his chain of command was more than willing to assist him and that he (the applicant) reported the threats against his spouse. Had the applicant told his commander about his spouse's childhood abuse, clearly the command, based on their other documented efforts to assist the applicant, would have advised or assisted the applicant accordingly. However, because of conflicting, or undocumented allegations by the applicant, his chain of command rendered a reasonable decision in denying the applicant's request for a hardship discharge and the applicant then elected to go AWOL, accumulating more than 1000 days of lost time. The applicant's discharge was accomplished in compliance with applicable laws and regulations with no indication of procedural errors, which would tend to jeopardize his rights.

3. 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 requirement.

4. 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__ __ALR __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063893
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020618
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.