MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002074844

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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: In effect, that his undesirable discharge (UD) be upgraded, and that his records be corrected to show the correct number of days he was absent without leave (AWOL).

APPLICANT STATES: In effect, that in 1970, while serving in the Republic of Vietnam (RVN), he was contacted by the Red Cross and informed that his father was dying of cancer. He applied for a hardship discharge and was returned and attached to Fort Dix, New Jersey, for processing. He expected to be discharged and sent to Philadelphia, Pennsylvania. However, while at Fort Dix, he was contacted by an officer from the Judge Advocate General (JAG) Corps, who informed him that he had to return to the RVN to testify at another soldier’s
court-martial trial. He returned to the RVN, under the impression that his hardship discharge was still being processed. After providing testimony at the other soldier’s trial that contributed to the charges being dismissed, he returned to Fort Dix to await his hardship discharge. Upon his arrival at Fort Dix, he was informed that there was no record of his being assigned to Fort Dix for hardship discharge processing, and he was advised to go home to Philadelphia, as his hardship discharge may have already been processed and in the mail. He went home, and several months later he was contacted by Federal Bureau of Investigation (FBI) agents and was informed that he had been AWOL. He was turned over to the Military Police and was transported to Fort Meade, Maryland. He claims that he was confined without the benefit of counsel. He states that he spent several days locked up with criminals, forced to do menial details, and harassed every day. He indicates that after serving one year in the RVN ,and dealing with the grief of his mother, the impending death of his father, the other soldier’s trial, dealing with the FBI, his confinement and the subsequent coercion, he signed the waivers that allowed him to be released to go home with an UD. He concludes by requesting that his discharge be upgraded because he was an exemplary soldier, who earned many awards, and was never in trouble with the military law. He claims that the alleged AWOL of 1506 days is a mistake. He claims that he served his country honorably from 1968 through 1974 and he now asks that the Board consider his request that his discharge be upgraded, and if possible his rank restored.

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

On 26 July 1968, the applicant enlisted in the Regular Army for 3 years and entered active duty. He successfully completed basic combat training at
Fort Bragg, North Carolina, and advanced individual training (AIT) at Fort Lee, Virginia. Upon completion of AIT, he was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).

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The applicant’s Enlisted Qualification Record (DA Form 20) confirms that on
7 November 1968, he was promoted to specialist four (SP4), which is the highest rank he attained while serving on active duty. It also shows that he was assigned to the RVN, and arrived there for duty on 12 May 1969. On 17 May 1969, he was further assigned to the 24^th Transportation Battalion, to perform duties as a supply sergeant.

The applicant’s DA Form 20 also shows that during his active duty tenure, he earned the following awards: National Defense Service Medal; Vietnam Service Medal; and the Republic of Vietnam Campaign Medal with 60 Device. There are no other acts of valor, significant achievement, or service warranting special recognition documented in his record.

On 20 February 1970, Special Orders Number 51, issued by Headquarters, United States Army Training Center, Infantry and Fort Dix, Fort Dix New Jersey, directed the applicant’s relief from attachment to the Replacement Company, Fort Dix, effective 26 January 1970. The reason cited for the relief from attachment was that the applicant had failed to produce the necessary documentation for a compassionate reassignment.

On 12 December 1970, the applicant’s unit commander in the RVN sent a letter to the applicant’s mother that informed her that the applicant, her son, had departed the unit on a 30 day emergency leave on 29 November 1969. Since that time, the unit had received no correspondence from her son informing them of the reason for his failure to return to the unit. The letter also requested that if his mother knew his whereabouts, she should urge the applicant to return to military control, and that her quick reply may affect her son’s future greatly.

Also on 12 December 1970, the applicant’s unit commander published a Commanding Officer’s Inquiry Letter. It confirmed that there was no indication of foul play or mental instability which might have caused the applicant’s absence. There was no evidence of intent to avoid hazardous duty or shirk important service. The letter indicated that the applicant was AWOL in the Continental United States (CONUS) and that the reason for his AWOL was unknown.

An Extract Copy of Morning Report (DA Form 188), dated 12 December 1970, published by the unit commander of the 24^th Transportation Battalion, RVN, confirms that the applicant departed his unit AWOL on 26 January 1970 and was dropped from the rolls (DFR) of the organization on 25 February 1970.

On 11 March 1974, the applicant surrendered to the FBI and on 12 March 1974, he was returned to military control and transported to Fort Meade, Maryland. On 14 March 1974, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for being AWOL from on or about
26 January 1970 to on or about 12 March 1974.
On 12 April 1974, the applicant consulted with legal counsel, who advised him of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized by the Uniform Code of Military Justice (UCMJ), the possible effects of an UD, and of the procedures and rights available to him. Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service/in lieu of court-martial under the provisions of chapter 10, Army Regulation 635-200. In his request, the applicant stated that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person. He acknowledged that he had been counseled on the implications that were attached to his request, and that by submitting the request he was acknowledging that he was guilty of the offense for which he was charged or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge. Finally, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

On 6 March 1974, the separation authority approved the applicant’s request for discharge for the good of the service/in lieu of trial by court-martial and directed that he receive an UD and be reduced to the lowest enlisted grade. On 13 May 1974, the applicant was discharged accordingly. The separation document
(DD Form 214) issued to the applicant on the date of his separation confirms that at that time he completed a total of 1 year, 8 months, and 2 days of creditable active military service, and had accrued a total of 1506 days to time lost due to AWOL. Of the total days of time lost, he accrued 545 days, from 26 January 1970 through 25 July 1971, prior to his normal expiration of term of service (ETS); and 961 days subsequent to his normal ETS, from 26 July 1971 through 11 March 1974.

It appears that in 1981 the applicant submitted an application to the Army Discharge Review Board (ADRB) requesting an upgrade to his discharge. However, in June 1981, the ADRB advised the applicant by letter that due to long delay in obtaining his records, the information contained in his original application needed to be verified. He was advised that if he wished a continuance of his application review, he should complete the new application enclosed, paying particular attention to his option to personally appear before the ADRB. He was advised to select one of two options contained at the bottom of the letter, the first to continue review of his case and the second was indicate that he no longer desired to pursue his initial request. He was advised to respond to the letter within 14 days or his case would be closed and his records returned for filing. There is no evidence suggesting that the applicant elected to continue the appeal or that his case was ever reviewed by the ADRB.

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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 UD.

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. The Board notes the applicant’s request that his UD be upgrade and that his record be corrected to show the proper number of days he was AWOL; and his contention that he was unaware that his hardship discharge request had not been approved. However, it finds insufficient evidence to support these claims. Although the applicant claims that he went home at the instruction of personnel at Fort Dix, he has failed to provide any independent evidence to support this claim or to show that the number of days of AWOL for which he was charged was incorrect.

2. The evidence of record shows the applicant departed his unit in the RVN on emergency leave in 29 November 1969. On 26 January 1970, he was relieved from attachment at Fort Dix, New Jersey, because he had failed to produce the necessary documentation for a compassionate reassignment.

3. In the opinion of the Board, even if the applicant’s contention that he went home because he was told his hardship discharge may be in the mail is true, lacking corroborating evidence, it is not reasonable to believe his claim that he heard nothing until he was found by the FBI in 1974. Although there was a significant delay in the unit formally declaring the applicant AWOL, the applicant has provided no independent evidence to show that he in fact was not aware that he was AWOL.

4. In December 1970, long before the applicant was returned to military control after being found by the FBI in 1974, the unit commander from his unit in the RVN sent a letter to his mother informing her of his AWOL status. In this letter, the applicant’s mother was also advised to urge her son to return to military control if she knew of his whereabouts, and that her quick reply could affect her son’s future greatly. In the opinion of the Board, if he were home caring for his mother and father, he should have at least became aware of his AWOL status when his mother received this letter.

5. In view of the facts of this case, although there were administrative delays in the applicant’s AWOL status being declared and in his being relieved from attachment at Fort Dix, there is no evidence to show that the applicant was unaware that he was AWOL.

6. The evidence of record clearly establishes that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. If further confirms 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 his request for discharge, he admitted guilt to the offense for which he was charged and he stated that he was requesting discharge of his own free will, and had not been subjected to any coercion whatsoever by any person.

7. 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 and that the character of his discharge accurately reflects his overall record of service. Therefore, the Board concludes that the requested relief is not warranted.

8. 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 this requirement.

9. 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

__CLA__ ___MHM___ __JTM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074844
SUFFIX
RECON
DATE BOARDED	2002/09/05
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1974/05/13
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.