PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2002074499


         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:

Mr. Raymond V. O’Connor, Jr..		Chairperson
Mr. Stanley Kelley .		Member
Ms. Gail J. Wire		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, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

3. In his enclosed statement, the applicant states, in effect, that he intended to enlist for the Military Police (MP) Corps for 3 years, but because he was not old enough to be in the MP, his recruiter misled him into believing that working for the Army Security Agency (ASA) would be related to MP work. This resulted in his enlisting for 4 years instead of the 3 years he originally intended. He also claims that he was harassed and abused by a senior noncommissioned officer (NCO) that he worked for in the Republic of Vietnam (RVN) and again at Fort Bragg, North Carolina. He indicates that his NCO helped manufacture one of his transgressions, for which he was severely penalized, and harassed him into further transgressions.

4. The applicant also claims that while serving in the RVN, as a result of the unit commander accepting his plan for time off for communications center personnel in order to improve their morale, he was labeled a troublemaker by the Officer in Charge (OIC) of the communications center and the NCO in question, who had rejected the same plan earlier. This strained relationship resulted in him being tricked into paying for his own airfare back to the RVN, subsequent to taking leave for the illness and death of his great grandmother. In addition, he accepted nonjudicial punishment (NJP) from the OIC, who was the acting commander at the time, upon his returning to his unit in the RVN. He later found out from the unit commander that the OIC was within his rights as the acting unit commander and the actions could not be reversed.

5. In addition, the applicant states that while he was still serving in the RVN, the Army implemented a plan to reduce all ASA four year enlistments to three years. This impacted him, and he accepted a one year reduction in his enlistment, which adjusted his expiration of term of service (ETS) to April 1973. In June 1972, he departed the RVN for an assignment to an ASA unit at Fort Bragg, North Carolina. Upon his arrival, he discovered that the NCO in question was in charge of the unit and was the individual he had to report to. In order to avoid this confrontation, he volunteered for a temporary duty assignment in Germany, and left on this assignment almost immediately.

6. The applicant indicates that while in Germany he accepted another NJP for insubordination, which he takes responsibility for, and he injured his knee playing football on the unit team. He states that his tour in Germany was curtailed after 150 days, and he returned to Fort Bragg. Upon his return to Fort Bragg in December 1972, he had less than 130 days to go until his ETS. However,
an encounter with the NCO in question occurred during his in-processing at Fort Bragg, and ultimately led to his absent without leave (AWOL) related misconduct and his UD.

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7. The applicant claims that he and four other members of his team were
in-processing in at Fort Bragg at the same time on a Monday morning upon their return from Germany. Two of the team members went ahead of him and the other two, were a couple of minutes behind. The NCO in question was the individual they had to report to, and as he entered the building, the NCO had just given the first two members of the team instructions to be available for muster on Friday. Then the NCO smiled at him and the other two members of the team and instructed them that they had to process in and be ready for muster the following morning. He argued with the NCO and stated that it was unfair of the NCO to punish the other members of the team because of his dislike for him, but this did not change the instructions. He complained about this incident to the unit commander, who after investigating the incident, verbally reprimanded the NCO, and gave the team members until Friday to in-process.

8. The applicant claims that after the in-processing incident, the harassment from the NCO really began. He claims that he received every dirty detail, such as painting rocks, police call, spot painting vehicles, and while every one had to perform details, they were rotated and he was not. He states that in late January 1973, he reinjured his knee during physical training, and he remained under a doctor’s care the rest of his time in the service. He indicates that in spite of his profile, the NCO still gave him details that he should not have been on given his physical limitations. During this period, he was just trying to hang on through his ETS. In March 1973, he took a weekend pass to go to South Carolina, and seek counsel from a friend, a recently discharged first lieutenant who was attending the Citadel with the intention of reentering the Army as a career officer. His friend was not home and he overstayed his weekend pass to seek his advice. His friend advised him to return and take his punishment for overstaying his pass, and to accept the NCO’s abuse and maintain a low profile until his ETS. He returned to post, accepted NJP for the AWOL and was fined and reduced in rank.

9. The applicant further states that in late March, his doctor scheduled him for surgery on his knee on 9 April 1973, and instructed him to report to the hospital on Friday, 6 April 1973, for pre-operative procedures. A training exercise was scheduled for the first two weeks of April, and the NCO in question insisted that he participate in the exercise on Kitchen Police duty, and told him that it was his goal to humiliate and embarrass him. When he informed the doctor, he was told that surgery took precedence. He informed the NCO of this, and his reaction was to still insist that he participate in the exercise. He brought this problem to the unit commander, who instructed him to compromise. He was told to report to the exercise on 2 April 1973, and then take the mail truck back in on Friday and report to the hospital. However, after hearing that the unit commander would be gone Friday through Sunday, he rode back on the mail truck earlier in the week and drove his car back to the exercise site.

10. The applicant claims that on Friday, he could not locate the unit commander and the NCO refused to let him take the mail truck back, so he drove his car back and reported for surgery. Surgery was performed on 9 April 1973, and he was released from the hospital on his ETS date, 27 April 1973. At this point, he was notified at the personnel office that his ETS orders had been revoked because he was no longer in the ASA, and that his enlistment had been adjusted back to four years, and he still had a year to serve. In addition, he was reassigned to a Signal Corps unit on Fort Bragg. He claims that the result of this was that he was punished twice for the same offense, because he had already received NJP and had been reduced in rank for the same transgression.

11. The applicant claims that the extension on active duty emotionally devastated him. He states that he addressed this issue to everyone in the chain of command and was told that he should resign himself to serving one more year. He states that after being ripped off by the recruiter, harassed by a senior NCO in the RVN, conned into providing his own transportation back to Vietnam, accepting NJP punishment he didn’t need to take, suffering physical injury, and being further harassed by the same senior NCO at Fort Bragg, he was expected to roll over and take this further unjust punishment. He claims that he explained to everyone that he had been able to survive the last six months by focusing on his ETS, and that is what kept him sane, and he had been searching for some honor and justice in the Army. He claims that he honestly felt that he deserved to be separated on 23 April 1973, and the extra time he stayed to reason with the powers that be more than compensated for his lost time. He states that he made it clear that if he could not find justice, he would make a stand on principle and leave on his accord, which he did.

12. The applicant concludes by stating that in the last 28 years he has asked for nothing. He has worked hard, always met his responsibilities, and he and his wife have raised five children. He claims that after what happened to him in the Army, he swore he would never serve again. However, in 1979, his attitude changed and had they asked for volunteers to go to Iran, he would have been the first to raise his hand. He also states that he would go to Afghanistan if he were needed and he flies the Flag everyday at his house. He states that his point is that he met his responsibilities, and he has seen drug addicts get honorable discharges through the drug amnesty program, he has seen peace time soldiers rewarded for their service, and he has seen draftees rewarded for their service after serving only two years. He further states that he served for over three years, including a year in the RVN, but has never received recognition for his service, which he would like to receive now from this Board.

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13. The applicant’s military record shows that he initially enlisted in the Regular Army for three years. However, on 28 April 1970, he agreed to an adjustment of his enlistment to four years in order to accept the ASA enlistment option.

14. The applicant’s Enlisted Qualification Record (DA Form 20) shows that he was trained and served in military occupational specialty (MOS) 72B (Communications Center Specialist), and that he received an accelerated promotion to private first class (PFC) while still in basic training. It also shows that he served in an ASA unit in the RVN from 30 June 1971 through 27 June 1972, and that he received “Excellent” conduct and efficiency ratings during this tour. The record further shows that he was promoted to specialist four (SP4) on 28 May 1971, and that this is the highest rank he attained while serving on active duty.

15. The applicant’s disciplinary history includes his acceptance of NJP on the following three separate occasions for the offenses indicated: 30 March 1972, for being AWOL from on or about 22 through on or about 23 March 1972;
9 March 1973, for being AWOL from on or about 2 March through on or about
7 March 1973; and 30 April 1973, for being AWOL from on or about 1 April 1973 through on or about 6 April 1973.

16. In May 1972, the Army directed that the ASA reduce the number of assigned enlisted personnel. As a result, all first term ASA enlisted soldiers who were serving on a four year enlistment were authorized to be released on a voluntary basis up to 12 months prior to their ETS. The program announcement informed participants that the program was not an adjustment to their enlistment contract, but merely a date on which they could be released due to budgetary constraints as long as they were serving in the ASA. Further, participants were required to acknowledge that if they were reassigned outside of the ASA for disciplinary and security reasons, their adjusted ETS would revert back to their original ETS.

17. In connection with the ASA program outlined in the preceding paragraph, the applicant signed an election statement voluntarily selecting an adjustment to his ETS to 27 April 1973. In this statement, he acknowledged his understanding that this action was not an adjustment to his enlisted contract, and that if he were reassigned outside of the ASA for disciplinary and security reasons his adjusted ETS would revert back to his original ETS.

18. On 5 March 1973, Special Orders Number 015, issued by Headquarters, 313^th ASA Battalion, Fort Bragg, North Carolina, directed the applicant’s assignment to the Transfer Point on 27 April 1973 for separation processing.

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19. On 13 March 1973, Unit Orders Number 13, issued by Headquarters,
313^th ASA Battalion, Fort Bragg, North Carolina, directed the applicant’s reduction to PFC, effective 9 March 1973, by reason of misconduct. This resulted in the applicant being reassigned out of the ASA and in an adjustment of his ETS back to the original date based on his four year enlistment.

20. On 5 October 1973, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for being AWOL from on or about
27 June through on or about 3 October 1973. On 25 October 1973, after consulting with legal counsel, and being advised of the basis for the contemplated trial by court-martial, the nature and effects of an UD, and of his rights, the applicant voluntarily requested to be discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial.

21. The applicant submitted a statement with his request for discharge. In it, he stated that he hated the Army and fully understood the consequences of an UD. He further indicated that he would without a doubt go AWOL again if he were returned to duty. He stated that he would rather have an UD than to return to duty. He finally stated that he would accept an UD to get out of the Army and that he understood that he would lose his veterans benefits. He concluded that he would never reform.

22. On 10 November 1973, the separation authority approved the applicant’s request for discharge, and directed that the applicant receive an UD and that he be reduced to the lowest enlisted grade. On 16 November 1973, the applicant was discharged accordingly. The separation document (DD Form 214) issued to him on the date of his discharge shows that he completed 3 years, 2 months, and 29 days of creditable active military service, and he accrued a total of 110 days of time lost due to AWOL.

23. In 1975, the applicant submitted an application to the Presidential Clemency Board, and on 21 January 1976, the applicant was notified by the Army that they had received a directive for the Officer of the Pardon Attorney to issue him a Clemency Discharge. However, there is no evidence of record that this ever occurred.

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24. Presidential Proclamation # 4313, dated 16 September 1974, announced a clemency program designed among other things to provide prior members of the Armed Forces who had been discharged with a punitive or UD based on AWOL related offenses the opportunity to apply to a Presidential Clemency Board for a clemency discharge. Under this program, eligible members were offered the opportunity to perform alternate service. Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate. The Presidential Clemency Board also had the authority to award a clemency discharge without the performance of alternate service.

25. 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.

CONCLUSIONS:

1. The Board notes the applicant’s contentions that he was misled by his recruiter into accepting a four year instead of a three year enlistment; that he was abused and harassed by a senior NCO; and that he was penalized twice for the same offense, by accepting NJP and subsequently being reassigned out of the ASA, which resulted in his ETS being adjusted back to four years. However, the Board finds insufficient evidence to support these claims.

2. The evidence of record shows that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, he admitted guilt to the stipulated offense under the UCMJ. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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3. While lacking specific evidence supporting the applicant’s allegations, the Board does find that the emotional impact on him as a result of the last minute change of his ETS likely contributed to his misconduct, and should be viewed as a mitigating factor in the subsequent AWOL related misconduct that led to his UD.

4. In the opinion of the Board, the preponderance of the applicant’s military service was honorable, to include his combat service in the RVN. This is supported by the “Excellent” conduct and efficiency ratings he received during this combat tour. Therefore, although his discharge was proper, the Board concludes that it would be appropriate and serve the interest of equity to upgrade his discharge based on his overall record of military service and the previously discussed mitigating factor.

5. While the Board determined that while the applicant’s service was sufficiently meritorious to warrant an upgrade of his discharge to a general, under honorable conditions discharge (GD), it 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.

6. Additionally, since the applicant was reduced to the lowest enlisted grade as a result of receiving the UD, as was required by regulation, the Board finds that as a result of its recommendation that his discharge be upgraded to a GD, his grade should also be restored to PV2, which was the grade he held prior to his discharge.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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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 16 November 1973, in lieu of the UD of the same date he now holds; by restoring his rank to PV2; 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:

__ST__ ___GW__ ___RO_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Raymond V. O’Conner, Jr.
                  CHAIRPERSON

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INDEX

CASE ID	AR2002074449
SUFFIX
RECON
DATE BOARDED	2002/05/22
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/11/16
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. 360	144.0000
3.
4.
5.
6.