PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 August 2002
         DOCKET NUMBER: AR2002073907


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Thomas Lanyi		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.

---

2. The applicant requests, in effect, that his undesirable discharge (UD) be upgraded and that he be promoted to the rank of staff sergeant/E-6 (SSG/E-6).

3. The applicant states, in effect, that he was unjustly given an UD and removed from the SSG/E-6 promotion list. He claims that he was an outstanding soldier with many awards, commendations, and a prior honorable discharge. However, once the new commander took over, he had many minor conflicts with him. It appeared to him that the new commander was weeding out soldiers who served in the Republic of Vietnam (RVN) by various methods. In the words of this commander, these actions were being taken for the betterment of the Volunteer Army.

4. The applicant also claims that once he was passed over for promotion, he met with the commander to discuss the reasons. At this meeting, he was informed that his methods of operation were unbecoming of a noncommissioned officer (NCO). It was clear to him at this point that all the awards, commendations, and letters of recommendation he received meant nothing to his new commander. He contends that after this meeting, he was told by the commander to go to his quarters until he decided what to do with him. During this period, he applied for a transfer to another unit. He indicates that he was never contacted until a NCO came to his house, and told him that the commander was writing him up for being absent without leave (AWOL). He immediately reported to the post to straighten out this matter. He took his transfer request with him, and the commander turned it down.

5. The applicant claims that at this time, he was told that he was restricted to the barracks and that nonjudicial punishment (NJP) action under Article 15 of the Uniform Code of Military Justice (UCMJ) would be administered. He was also told to take three or four days to clear quarters and take care of his personal business. He cleared quarters and sent his wife home to his family. He reported back to the commander, who served him with various charges, which he claims were drummed up. The charges were forwarded to the battalion commander, who rejected them and returned them to the company for appropriate action. He refused to accept NJP under Article 15 and requested a trial by court-martial. He obtained private legal counsel. After the paperwork was forwarded back and forth, the commander again refused to release him to a new unit. At this time, he felt there was no choice but to resign for the betterment of the Army, and leave with honor. He was told that he would receive an honorable discharge, but it would take several months to process.

---

6. The applicant’s military records show that he initially enlisted in the Regular Army and entered active duty on 23 September 1968. He was trained and served in military occupational specialty (MOS) 11B (Infantryman), and served in the RVN from 22 October 1969 through 21 October 1970. There is no derogatory information or record of disciplinary action on file for this period of service.

7. On 15 April 1971, the applicant was honorably discharged from his initial active duty enlistment in order to immediately reenlist. The separation document
(DD Form 214) issued to him at this time confirms that he completed a total of
2 years, 6 months, and 23 of active military service, and that he held the rank and pay grade of sergeant/E-5 (SGT/E-5).

8. The applicant’s 15 April 1971 DD Form 214 also confirms that he earned the following awards during this period of active duty service: National Defense Service Medal; Parachutist Badge; Vietnam Service Medal; Combat Infantryman Badge (CIB); Vietnam Campaign Medal with 60 Device; Bronze Star Medal (BSM); Army Commendation Medal; 1^st Class Gunner Badge (Machine Gun); Sharpshooter Badge (M-14 Rifle; and Marksman Badge (M-16 Rifle).

9. On 16 April 1971, while serving in Germany, the applicant reenlisted for the enlistment under review. His Personnel Qualification Record (DA Form 2-1) confirms in Item 18 (Appointments and Reductions) that the highest grade he held while serving on active duty was SGT/E-5. It also verifies that on
10 January 1976, he was reduced to the grade of private/E-1 (PV1).

10. The applicant’s Military Personnel Records Jacket (MPRJ) contains no documents or orders that suggest that he was ever recommended for or promoted to SSG/E-6. However, it does include a copy General Orders Number 374, dated 24 March 1972, issued by Headquarters, 8^th Infantry Division, which awarded him the Army Good Conduct Medal, for his honorable active service from 23 September 1968 through 23 September 1971.

11. The applicant’s MPRJ also includes a copy of a letter of commendation, dated 27 October 1972, that he received for his superior performance as a member of the 8^th Infantry Division Expert Infantryman Badge Test Evaluation Committee, from July through October 1972. Also on file is a copy of a letter of appreciation, dated 6 December 1972, in which he was recognized for his outstanding performance as a company mechanic during the preparation for the unit’s Maintenance Evaluation Team Inspection.

---

12. The first evidence of a disciplinary infraction in the applicant’s record is a field grade NJP action that he accepted in January 1974. The NJP action was taken based on two specifications of the applicant being derelict in the performance of his duties. This dereliction consisted of his willfully failing to go to a Maintenance Supervisor School after being instructed to do so on two separate occasions, on 22 and 24 October 1973. His punishment for these offenses included a reduction to the grade of specialist four/E-4, suspended for 180 days; and a forfeiture of $189.00. The applicant elected not to appeal the punishment imposed.

13. The specific facts and circumstances on the applicant’s discharge processing were not on file. However, the applicant provided a letter from his unit commander, dated 19 December 1975, Subject: Court-Martial Charges. This letter indicates that the following three court-martial charges were being preferred against the applicant for the offenses indicated: Charge I, seven specifications of violation of Article 86 of the UCMJ, AWOL, between
2 September and 4 December 1975, that totaled 9 days of time lost; Charge II, violation of Article 91 of the UCMJ, disobeying the lawful order of a superior NCO; and Charge III, violation of Article 90, disobeying the lawful order of a superior commissioned officer.

14. The applicant also provided a copy of his request for discharge for the good of the service. This document confirms that the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, and the maximum permissible punishment authorized under the UCMJ. Counsel also advised him on the possible effects of an UD if the request was approved, and of the procedures and rights available to him. Subsequent to this counseling, the applicant elected to voluntarily request discharge for the good of the service/in lieu of trial by court-martial.

15. On 26 January 1976, the applicant received an UD after completing 4 years, 9 months, and 2 days of active military service and accruing 9 days of time lost on the period of enlistment under review. At the time of this discharge, he had completed a total of 7 years, 3 months, and 25 days of active military service. The DD Form 214 issued to him for this period of service confirms that he held the rank of PV1 on the date of his discharge.

---

16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 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 UD. In addition, the regulation required members receiving an UD to be reduced to the lowest enlisted grade in conjunction with their discharge.

CONCLUSIONS:

1. The Board notes the applicant’s contentions that his UD and his being denied promotion to SSG/E-6 were unjust actions. However, it finds insufficient evidence to support these claims. The Board finds no evidence of record, and the applicant has failed to provide evidence to show that the unit commander’s actions relating to these issues were in error or unjust.

2. The evidence of record contains no indication that the applicant was ever promoted to SSG/E-6 while serving on active duty. Further, even had he been on a promotion list, he would have been removed based on his voluntary request for discharge for the good of the service. Lacking any evidence of error or injustice related to this promotion, the Board finds no evidentiary basis that would support recommending that the applicant be promoted to SSG/E-6 at this time.

3. In addition, the record is void of the specific facts and circumstances concerning the events that led to the applicant’s discharge from the Army. However, the applicant admits that he voluntarily elected to request discharge for the good of the service/in lieu of trial by court-martial, after court-martial charges were preferred against him. The record also confirms that prior to requesting discharge, he consulted with legal counsel and was advised of the basis for the contemplated court-martial, the maximum permissible punishment, and the effects of an UD.

4. The Board also notes that the record contains a properly constituted DD Form 214 that was authenticated by the applicant. This document identifies the reason and characterization of the discharge, and the Board presumes Government regularity in the applicant’s discharge process. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

---

5. However, after carefully reviewing the applicant’s overall record of service, the Board finds the preponderance of his active military service was honorable. The Board took special note of his combat service in the RVN, which included his earning the CIB and BSM, and the relatively minor nature of the offenses that resulted in his discharge. It further notes that the applicant’s record is free of any disciplinary history during his first five years of service. Although the Board finds the applicant’s discharge was proper and equitable at the time, it concludes that it would be appropriate and in the interest of equity to upgrade his discharge based on his overall record of military service.

6. While the Board determined that applicant is deserving of a discharge upgrade based on his overall record of service, it also finds that his misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge. Therefore, it concludes that an upgrade of his discharge to fully honorable is not warranted, and that it should only be upgraded to a general, under honorable conditions discharge (GD) at this time.

7. In addition, lacking any evidence of record that shows that the applicant’s reduction to PV1 was the result of some UCMJ action, the Board presumes he was reduced to the lowest enlisted grade as a result of receiving the UD, as was required by regulation. Thus, as a result of the Board’s recommendation that his discharge be upgraded to a GD, his grade should also be restored to SGT/E-5, which was the grade he held prior to his discharge.

8. 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 the individual concerned received a general, under honorable conditions discharge on 26 January 1976, in lieu of the UD of the same date he now holds, and that his rank is restored to SGT/E-5 accordingly; and by providing him a corrected separation document that reflects these changes.

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

BOARD VOTE:

__INW__ __AAO __ _ _TL__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Irene N. Wheelwright__
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002073907
SUFFIX
RECON
DATE BOARDED	2002/08/27
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1976/01/26
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court Martial
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2. 310	131.0000
3.
4.
5.
6.