PROCEEDINGS


         IN THE CASE OF:
                                   
        

         BOARD DATE: 16 September 2003
         DOCKET NUMBER: AR2002080880


         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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 that his undesirable discharge be upgraded to honorable.

3. He states that he enlisted in the Army for training and experience as a helicopter mechanic. When he returned from Vietnam, the war was winding down. The Army had less need for helicopter mechanics so they sent him to Fort Riley, Kansas to work on tanks. He felt he was being betrayed by being forced to work with tanks. He tried to get transferred back into helicopters but was told he would have to be transferred overseas and that he did not have enough time remaining on his enlistment. He also felt that he was being mistreated. He had not been paid since he left Vietnam and had to pay his own way to get to Fort Riley. He reported in on Wednesday, was put to work on Thursday and was denied permission to go to finance. He went AWOL out of frustration and the belief that if he surrendered at Fort Lewis, Washington, near his home, he might get transferred there and could get assigned to a helicopter unit. His parents turned him in for AWOL and he was returned to Fort Riley, Kansas. After he did it again the Army decided that he needed retraining and sent him to Fort Riley to the Retraining Command. Racial violence within the Fort Riley Retraining Command would have precluded anyone from being rehabilitated. He thought then and thinks now that the Army caused all the problems by disregarding his enlistment contract. The applicant also submits several letters of reference to show that his post service behavior and conduct has been so exemplary that it outweighs the misconduct of record.

4. On 28 December 1970, the applicant enlisted as an 18 year old high school graduate with a training preference enlistment option as an aircraft maintenance apprentice. He completed training and was awarded an aircraft maintenance military occupational specialty and was stationed in Vietnam as a helicopter crew chief with the A Company, 227^th Aviation Company on 25 June 1971. The unit was re-designated the 3^rd Aviation Company on 3 October 1971. On 23 February 1972, the applicant was awarded the Air Medal for meritorious achievement for the period 3 July to 15 July 1971. He returned to the United States on 20 March 1972.

5. He reported to Fort Riley, Kansas, on 3 May 1972, for duty as a tank mechanic. He was AWOL from 10 to 31 May for which he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice. The punishment consisted of forfeiture of $80.00 per month for 1 month, reduction to pay grade E-3 and 14 days restriction and extra duty.

6. The applicant was AWOL from 11 November 1972 to 25 January 1973. When charges were preferred, he consulted with counsel and voluntarily requested discharge for the good of the service (GOS) in lieu of trial by court-
martial under the provisions of Army Regulation 635-200, chapter 10. He also

---

submitted a statement in his own behalf in which he noted his Vietnam service, stated that it took him 5 months at Fort Riley to learn that "it was just stateside duty I couldn't handle.…being overseas, just doing our job with no one to bother us. It's not like the Army in general." He thought the Army would be better off without him.

7. In his endorsement to the Chapter 10 request, the immediate commander, a field artillery lieutenant colonel, wrote that he had interviewed the applicant and considered him completely unmotivated. He recommended, "a General Discharge Certificate be issued in consideration of prior good service including a tour in Vietnam." On the Chapter 10 processing form he noted the applicant's Vietnam awards (less the Air Medal), observed that "he cannot adjust to stateside duty, nor does he want to…He just is not motivated for further service." and recommended a general discharge.

8. The acting staff judge advocate (SJA) opined "this is not a ‘serious charge’ w/i meaning of CHAP10 provisions" and recommended denial.

9. The separation authority disapproved the applicant's request as not "in the best interests of insuring justice and preserving discipline in the Army."

10. On 13 March 1973, a special court-martial convicted of the applicant and sentenced him to reduction to pay grade E-1, forfeiture of $200.00 pay per month for 3 months and confinement at hard labor for 4 months.

11. The applicant submitted a second Chapter 10 request on 15 March 1973. He submitted another letter in his own behalf in which he again stated that he had learned that he simply could not take stateside duty. He also thought his sentence was unduly harsh for a 58-day AWOL. He asked for a general discharge.

12. The immediate commander again recommended approval of the applicant's request with a general discharge. He stated: "I reiterate my earlier opinion that…be approved based on past good service and one tour in Viet Nam. This is the type individual that is a good soldier as long as there is a combat situation in which he can be used."

13. The SJA noted that the applicant had already been tried and opined that there was no basis for reconsideration of the applicant's request. He concluded that the applicant was an appropriate candidate for the Retraining Brigade at Fort Riley, Kansas and returned the GOS request without action.

14. On 20 March the convening authority/discharge authority approved the court-martial findings and mitigated the sentence by suspending confinement in excess of 2 months until 12 September 1973.

15. The applicant was transferred to the Retraining Brigade at Fort Riley, Kansas on 26 March 1973.

16. A 13 May 1973 separation medical examination found him fit for separation with a physical profile of 111111. At a mental status evaluation the applicant's behavior was normal. He was fully alert and oriented and displayed an unremarkable mood. His thinking was clear, his thought content normal and his memory good. There was no significant mental illness. The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right.
 
17. On 17 May 1973 the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-200 for unfitness because of frequent incidents of a discreditable nature. The details of the separation processing are not of record. He had 1 year, 11 months and 26 days of creditable service and 144 days lost due to AWOL and confinement.

18. His DD Form 214 (report of Transfer or Separation) shows that his authorized awards consist of the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the RVN Campaign with "60-" device and the Aircraft Crew Member Badge.

19. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. At that time, Chapter 10 of that regulation provided, 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. It provided that the request may be approved, even after trial. 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 undesirable discharge.

20. On 1 November 1973 the Army Discharge Review Board denied the applicant's request to upgrade the discharge.

21. Department of the Army General Orders 8 of 1974 awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Army, Vietnam and subordinate units for the period 20 July 1965 to 28 March 1973.

22. Army Regulation 600-8-22 also authorizes a bronze service star, based on qualifying service, for each designated campaign listed in Appendix B of the regulation and states that authorized bronze service stars will be worn on the
appropriate campaign or service medal. A silver service star is authorized in lieu of five bronze service stars. The regulation also lists the designated campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal. These include: Counteroffensive Phase VII, ending on 30 June 1971; Consolidation I, ending on 30 November 1971; Consolidation II, ending on 29 March 1972.

23. The letters of support submitted by the applicant to substantiate his contention that his post service conduct mitigates his misconduct are as follows:
        
• A former supervisor of five years standing relates that the applicant seldom missed work. He was reliable, a stickler for detail and a pleasure to work with. He was proficient at looking ahead to detect and rectify future problems. His dedication was a measuring stick by which to gauge others.

• A Chief Shop Steward states that, until recently, he hardly knew the applicant because reliable, safety conscious employees did not attract attention. Recently the applicant was chosen by his peers to serve on the Shop Committee where he has become a valuable member. He has earned the respect of the writer, his fellow workers and of management. He has been praised as the best person at his position. He can be relied upon to work safely, do the best job he can, every day.

• The applicant's direct supervisor for over 9 years states that the applicant has distinguished himself as "dedicated to the job at hand." He makes timely decisions, is well organized and is a trusted performer.

• The lead supervisor states that the applicant has worked there for 10 years. No matter what the job, he can be counted on to work safely, efficiently and display a positive attitude. He is considered a valuable asset.

• Another former supervisor and co-worker, who has known the applicant for 8¹/₂ years, writes that he is detail oriented, safety conscious, organized and a honest, loyal team player.

---

CONCLUSIONS:

1. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2. However, the process that placed the applicant at the Retraining Brigade at Fort Riley, Kansas was improper in that there was no regulatory requirement for a "serious offense" that the Acting SJA applied in recommending denial of the applicant's original Chapter 10 request. The only requirement was that a punitive discharge was authorized. Similarly, the fact that the applicant had already been tried by court-martial did not preclude the separation authority's from considering the applicant's second request. The SJA's returning it without action was also improper.

3. Furthermore, the action was unduly harsh. Both the Acting SJA and the SJA provided fallacious rationale with the result that the recommendation of the immediate commander, an experienced field grade officer who clearly had the better understanding of and appreciation for the applicant and the situation, was ignored. The unfairness of the outcome was that the applicant, who neither expressed a desire nor showed any potential for further service, was selected as a candidate for retraining. This was tantamount to using rehabilitation as punishment.

4. The Board concludes that the respect and esteem expressed in the supporting letters indicates that the FSM's post service behavior shows that the behavior that led to the applicant's discharge was a situational aberration of character and does mitigate his offenses.

5. These factors, taken together with the improprieties and harshness in the handling of the case and redeeming aspects of the applicant's combat service, indicate that the undesirable discharge is now inequitable and should be upgraded.

6. However, his misconduct as evidenced by the NJP and the special court-martial conviction for AWOL offenses warranted his separation and precludes relief in the form of an honorable discharge. A general discharge for the same reason is appropriate.

7. The applicant qualified for or was awarded the Air Medal, Vietnam Service Medal with three bronze service stars and the RVN Gallantry Cross with Palm Unit Citation. Continued failure to list them on his DD Form 214 is a correctable error.

---

8. In view of the foregoing findings and conclusions, correcting the applicant's records as recommended below will correct an error and rectify an injustice.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by

a. voiding the 17 May 1973 undesirable discharge currently held by the individual concerned, by issuing him a general discharge under honorable conditions of the same date; and

b. showing that in addition to the awards already shown on his DD Form 214 his authorized awards include the Air Medal, three bronze service stars for wear on the Vietnam Service Medal, and the RVN Gallantry Cross with Palm Unit Citation.

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

BOARD VOTE:

__FNE___ _MHM__ __KAH___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _ Fred N. Eichorn__
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002074203
SUFFIX
RECON
DATE BOARDED	20030916
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19711129
DISCHARGE AUTHORITY	AR635-200, ch 10 . . . . .
DISCHARGE REASON	A70.00
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	A92.08
2.	A92.22
3.
4.
5.
6.