MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 March 2003
         DOCKET NUMBER: AR2002075015

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Kenneth W. Lapin		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 under other than honorable conditions discharge be upgraded to honorable and that he be paid 3 and 1/2 years’ back pay for the time he was held past his expiration of term of service (ETS) date.

APPLICANT STATES: In effect, that he served 3 years, 11 months, and 19 days beyond his ETS date and that, upon being released from the United States Disciplinary Barracks (USDB), he should have been honorably discharged. He states that due to racism in the Army, he was deprived of back pay and was wrongfully discharged. He states that he was advised by Army counsel to get out of the Army under the provisions of chapter 10, Army Regulation 635-200, for the good of the Army, and that his discharge would be automatically upgraded in 6 months. He states he is asking the Board to weigh his case and grant him an honorable discharge and back pay for being held past his ETS (estimated time of separation) date. He states that he grew up in the projects; that he has five brothers that he encouraged to join the military and that they served honorably; and that he will always view the time he spent in service as the brightest spot in his life. He states that his wife had a child by another man while he was serving his country and this hindered his ability to serve.

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

He enlisted in the Regular Army on 15 August 1966 for a period of 3 years. Following completion of all military training, the applicant was awarded military occupational specialty (MOS) 11B, Light Weapons Infantryman, and was assigned to the Republic of Vietnam. On 15 August 1967, at Cu Chi, South Vietnam, he was honorably discharged for the purpose of immediate reenlistment.

He reenlisted in the Regular Army on 16 August 1967 for a period of 6 years.

On 23 January 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for dereliction of duty in that he was sleeping during duty hours. His punishment consisted of forfeiture of $35.00 pay per month for 1 month and 14 days' restriction and extra duty.

On 24 March 1969, the applicant departed his unit absent without leave (AWOL) and remained absent until 25 May 1969. He again departed his unit AWOL on 4 June 1969 and remained absent until 22 June 1969. On 30 June 1969, the applicant was convicted by a special court-martial for these periods of AWOL. He was sentenced to confinement at hard labor for 6 months, forfeiture of $70.00 pay per month for 6 months (suspended until 11 September 1969), and reduction to private/E-1. The sentence was approved on 30 June 1969.

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A supervisory review was completed on 22 July 1969. On 1 August 1969, the unexecuted portion of the sentence to forfeiture of pay was suspended until 11 September 1969. On 3 September 1969, the unexecuted portions of the sentence to confinement at hard labor and forfeiture of pay were remitted.

On 10 September 1970, the applicant was convicted by a special court-martial of being disrespectful toward a superior commissioned officer by failing to salute and unlawfully striking a specialist/E-4. He was sentenced to confinement at hard labor for 2 months, forfeiture of $30.00 pay per month for 6 months and reduction to private/E-1. The sentence was approved on 30 September 1970.

On 16 February 1971, the applicant departed his unit AWOL and remained AWOL until 26 March 1975.

On 22 July 1975, the applicant was convicted by a special court-martial of being AWOL from 16 February 1971 to 26 March 1975, failing to go to his appointed place of duty on 2 May 1975, and for willfully disobeying a lawful order of his superior noncommissioned officer on 3 May 1975. He was sentenced to a bad conduct discharge, confinement at hard labor for 4 months, forfeiture of $200.00 pay per month for 4 months, and reduction to private/E-1. The sentence was approved on the same date and the applicant was confined pending appellate review.

On 25 July 1975, Headquarters, United States Army Personnel Control Facility, United States Armor Center, Fort Knox, Kentucky, administratively determined that under the provisions of Section IV, Paragraph 1-14a, (1), Army Regulation 630-10 that the period from 21 March 1975 to 26 March 1975 be reclassified as good time.

On 31 December 1975, the applicant was placed on excess leave pending appellate review.

On 14 May 1976, the findings of guilty and the sentence were set aside and the charges dismissed. All rights, privileges, and property of which the applicant was deprived by virtue of the findings of guilty and the sentence so set aside were restored. There is no indication in the record why the sentence was set aside or any information on back pay and allowances. The applicant was returned to duty at Fort Hood, Texas.

On 2 July 1976, the applicant was confined by civil authorities in Anahalac, Texas and remained confined until 3 August 1976, when he returned to military control at Fort Hood.

On 4 September 1976, civil authorities confined the applicant to the Harris County Jail in Houston, Texas.
On 8 June 1977, the applicant accepted NJP for breaking medical quarantine. His punishment consisted of detention of $194.00 pay per month for 3 months (suspended) and 7 days restriction and extra duty.

On 20 October 1977, the applicant accepted NJP for being AWOL from 9 to 15 September 1977. His punishment consisted of forfeiture of $50.00 pay per month for 2 months, reduction to the grade of private/E-2 (suspended 90 days), and 20 days' restriction and extra duty.

On 16 February 1978, civil authorities again confined the applicant in the Harris County Jail.

On 13 July 1978, the applicant accepted NJP for being disrespectful in language toward his superior commissioned officer. His punishment consisted of forfeiture of $198.00 pay per month for 2 months ($198.00 pay per month for 1 month suspended 180 days), reduction to the grade of private/E-1, and 45 days' restriction and extra duty.

On 21 August 1978, the applicant accepted NJP for being disrespectful in language toward his superior noncommissioned officer and assaulting him. His punishment consisted of forfeiture of $198.00 pay per month for 2 months ($198.00 pay per month for 1 month suspended 180 days) and 45 days' restriction and extra duty.

On 25 September 1978, the applicant departed his unit AWOL and did remain AWOL until 26 February 1979. On 27 April 1979, the applicant was charged with this period of AWOL. On 27 April 1979, he requested discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service.

The applicant submitted a statement in his own behalf with his request for discharge. In his statement the applicant indicated that he did not receive retraining following his confinement to the USDB. He stated that, even with seeking assistance to obtain his clothes, it still took approximately 2 months before his clothes were given back to him. He stated that he went AWOL because of the bad leadership at Fort Hood. He requested a general discharge and indicated that he was fighting a nervous condition. He requested that the convening authority take into consideration his overseas service in Vietnam and Germany, and that his previous court-martial had been set aside. He also indicated that he went AWOL because of personal problems.

On 1 May 1979, the applicant was placed on excess leave and remained on excess leave until 15 June 1979.



On 30 May 1979, the unit commander recommended approval of the request for discharge under the provisions of chapter 10, Army Regulation 635-200 and the issuance of a discharge under other than honorable conditions.

On 8 June 1979, the appropriate authority approved the request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 with a UOTHC.

Accordingly, on 15 June 1979, the applicant was discharged from the Army after completing 10 years, 11 months, and 19 days of active military service. He was credited with a total time in service of 11 years, 11 months, and 20 days.

On 5 April 1983, DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) corrected Items 18 (Record of Service), 21 (Lost Time), and 27 (Remarks) on the applicant’s DD Form 214 for the period ending 15 June 1979 to reflect the following changes:

Item 18A (Net Active Service This Period) - 5 years, 4 months, and 1 day
Item 18C (Total Active Service) - 6 years, 4 months, and 2 days
Item 18E (Total Service for Pay) - 6 years, 4 months, and 2 days

Item 21 (Lost Time) - Delete: 154 days; Add: 2,342 days

Item 27 (Remarks) - Delete: Total time lost under Title10 United States Code 972 – 162 days; Add: Total time lost under Title10 United States Code 972 – 2,342 days; 23 July - 9 September 1970, 10 September – 29 October 1970, 30 November – 2 December 1970, 16 February 1971 – 20 March 1975, 13 July – 3 August 1976, 2 - 15 September 1977, 16 February –13 March 1978, 25 September 1978 – 25 February 1979

Item 27 (Remarks) - Delete: Total time lost under Title 10 USC 972 subsequent to ETS-154 days: from 25 September 1978-25 February1979

The DD Form 215 indicates that the above is page "one of two pages," but page two is not a part of the available records.

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. The request may be submitted at any time after charges have been preferred and must include the
individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
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. 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.

2. The applicant has not shown that he was the victim of racial prejudice or that all of his rights, privileges and property were not restored to him following the setting aside of his 22 July 1975 special court-martial conviction.

3. The evidence of record does not support the applicant's contentions that he was advised to get out of the Army and his discharge would be automatically upgraded after 6 months. The evidence of record indicates that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, to avoid trial by court-martial. The request was administratively correct and in conformance with applicable laws and regulations. There is no indication that the request was made under coercion or duress. Furthermore, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a request for a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge, or both, were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

4. The evidence of record does not support the applicant's contention that he is due 3 and 1/2 years' back pay for being held past his original ETS date. The applicant was AWOL and in civil and military confinement on numerous occasions and, according to chapter 1, section IV, paragraph 1-23, Army Regulation 635-200, when a soldier is absent or unable to perform his duty for one or more duty days to complete his enlistment/reenlistment period, his term will be adjusted. This period of time is considered lost time and lost time will be made good at the end of an enlistment/reenlistment period. Confinement under sentence and AWOL are considered lost time and are reasons to adjust the soldier's time during his enlistment/reenlistment. Therefore, the applicant's ETS date was adjusted due to his many periods of AWOL and confinement.

5. The Board also noted that the applicant was placed on excess leave from 1 May 1979 through 15 June 1979. While in an excess leave status, the applicant was not entitled to pay or allowances.

6. The Board noted that the applicant’s chain of command tried to assist him in performing and conducting himself to Army standards by providing counseling and by the imposition of nonjudicial and judicial punishment; however, the applicant failed to respond appropriately. While the Board is empathetic, the applicant's marital and personal problems are not sufficiently mitigating to warrant an upgrade of his discharge. There were many avenues available to the applicant to handle his marital and personal problems without departing his unit in an AWOL status.

7. The Board carefully reviewed all of the applicant’s faithful and honorable service as well as his misconduct. The Board determined that the applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. These incidents of misconduct clearly diminished the quality of the applicant’s service below that meriting a general or fully honorable discharge.

8. 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

__lls___ ___cjp__ __kwl___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075015
SUFFIX
RECON
DATE BOARDED	20030320
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19790615
DISCHARGE AUTHORITY	AR 635-200, Chap 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.9405
2.
3.
4.
5.
6.