RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 May 2007
      DOCKET NUMBER:  AR20060010821


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Ronald J. Weaver              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, through his Member of Congress
(MOC), reconsideration of his request for an upgrade of his discharge.

2.  The applicant has, in effect, directed his comments to his MOC in a
letter addressed to her.  The applicant states, in the letter, in effect,
he would like her assistance in having his discharge upgraded and her
assistance in helping him to receive compensation.

3.  In the letter he wrote to his MOC, he stated, in effect, in pertinent
part, he was an honorably separated Vietnam Veteran with 18 months in-
country.  He got out of the Army for a while and joined up again and ended
up in Germany.  His mother came down with cancer and he got an emergency
leave to come home.  When his 30-day leave was up, he reported to Fort
Campbell, Kentucky, to get a hardship discharge.  While he was waiting for
a decision, they let him go home to visit his mother.  On his return he
had an accident on a motorcycle.  Two weeks after the motorcycle accident,
his request for a hardship discharge was turned down, so he applied for a
compassionate reassignment.  Again, they let him go home for 5 days.  On
his way out, he and his sergeant had a talk about just contacting him
since he had wrecked his motorcycle.  He doesn't know for sure what
happened, but he never got his orders nor did anyone come after him.
Normally, he added, "after you are AWOL (absent without leave) for 30
days, they send someone after you."  He stayed home for one year before he
turned himself in to the military police at Fort Knox, Kentucky.  When he
turned himself in, he was neither listed as AWOL or DFR (dropped from the
rolls [of his organization]).  That is why no one came after him.  He had
been, he summarizes, lost in the system.

4.  The applicant's MOC requests that her constituent's concerns be
reviewed and that she be advised of the findings and about any action
taken.

5.  In support of his application, the applicant provides, through his MOC,
those documents listed as enclosures on the letter to her.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records, which were
summarized, in the previous consideration of the applicant's case by the
Army Board for the Correction of Military Records in Docket Number
AR20050008918 on 16 March 2006.

2.  In the request the applicant submitted to the Board originally, he
stated he was supposed to be discharged for medical reasons because of a
back injury from a motorcycle accident, and that he was, at the time,
trying to qualify for Department of Veterans Affairs (VA) benefits.

3.  As indicated in the Record of Proceedings referenced in paragraph 1,
the applicant's records contain no medical treatment records or other
documentary evidence to show he suffered a back injury from the motorcycle
accident he was involved in while he was on active duty.

4.  The applicant's record contains a DA Form 285, Accident Report, dated
28 April 1976.  This accident report shows the applicant was involved in a
traffic accident near Paris, Tennessee, in which he was the operator of a
motorcycle that was struck by an automobile.  The DA Form 285 shows he
sustained minor injuries to his left foot and to his head.

5.  On 5 May 1976, the Commander, US Army Personnel Control Facility,
Fort Campbell, Kentucky, the applicant's unit at the time, completed the
DA Form 2173, Statement of Medical Examination and Duty Status, provided
to him by the Commander, US Army Hospital, Fort Campbell, on 20 April
1976.  This report shows the applicant had sustained a head injury, was
hospitalized for observation for this injury, and the injury was incurred
in the line of duty while he was on authorized pass from his unit, the
personnel control facility.  The injury was determined to have been
incurred, "in the line of duty."  The line of duty determination was
approved, on 12 May 1976, by the appropriate authority, by authority of
the Secretary of the Army and Army Regulation (AR) 600-33.

6.  New evidence the applicant provided through his MOC shows his mother
wrote him a letter on, Sunday, 28 September 1975.  The envelope was date
stamped, 29 September 1975.  In this letter, the applicant's mother was,
in effect, asking him to write a letter for her signature to support his
request for a compassionate reassignment since she was diagnosed with
cancer and her "nerves were shot."  At the time the letter was written,
the applicant was assigned to a unit in Germany and his mother was in
Caldwell, Missouri.

7.  The applicant submitted a copy of an absentee TA-50 inventory that was
completed, on 11 February 1976, of his field equipment.  The reason shown
is, "Leave."
8.  The applicant's record contains a copy of DA Form 1, Morning Report,
prepared by the Combat Support Company, 1st Battalion, 39th Infantry, for
the period 12 through 14 March 1976, which shows the applicant's duty
status was changed to "AWOL," with an effective date of 14 March 1976.

9.  The applicant's record also contains a copy of DA Form 1, Morning
Report, prepared by the Combat Support Company, 1st Battalion, 39th
Infantry, for 18 March 1976, which shows the applicant's duty status was
changed to "Rtn/Pres," with an effective date of 16 March 1976.

10.  The applicant's record contains a copy of the DA Form 2475-2,
Personnel Data – SIDPERS (Standard Installation Division Personnel System)
that was established for the applicant at Fort Campbell.  Part II, SIDPERS
Transactions, shows the applicant's duty status was changed from "Present
for Duty" to "Ordinary Leave," with an effective date of 1 May 1976.  His
duty status was changed from "Ordinary Leave" to "Absent Without Leave,"
with an effective date of 14 May 1976.

11.  On 22 March 1977, Orders 55-10, were published by Headquarters, US
Army Personnel Control Facility, US Army Armor Center, Fort Knox,
Kentucky, assigning the applicant to the Special Processing Company, US
Army Personnel Control Facility, US Army Armor Center, Fort Knox, with an
effective date of 8 March 1977.

12.  The above two entries, shown in paragraphs 8 and 9 above, were
included in the DD Form 458, Charge Sheet, which was prepared on 24 March
1977, as Specification I, in which the applicant was charged with being
AWOL from his unit in Germany, for the period from 13 March 1976(sic)
through 16 March 1976.

13.  In an additional specification in the charge sheet, the applicant
was charged with being AWOL, from 13 May 1976, from his unit in Germany,
and remaining so absent until 8 March 1977.

14.  At the time the applicant requested discharge in lieu of trial by
court-martial, 25 March 1977, he wrote a statement in his own behalf.  In
this statement, the applicant gave the reasons for his enlisting in the
Army.  After he had been in the Army for a while, he learned of his
mother's health.  At the time he tried to get out but was told that he
could not and no one would help him.  He went to Germany
and found things worse for him and his mother's health also got worse.  He
was granted a leave to come home to get paperwork for a hardship discharge.
 While he was in the States, he went to Fort Campbell to get the papers
processed.  His request for a hardship discharge was disapproved so he
requested a compassionate reassignment, but he went AWOL before he heard
anything.  While he was AWOL, he spent the last few months his mother had
on this world with her.  Now, since he had been gone from the Army for so
long, he could not readjust to the Army again.  In his statement he added
that he wanted the discharge in lieu of trial by court-martial to spend
with his father because he felt his father did not have much more time left
either.

15.  After the applicant's return to military control and his assignment
to the Special Processing Company, Fort Knox, on 8 March 1977, he
remained at that station and submitted his request for discharge in lieu
of trial by court-martial.  As indicated in the original Record of
Proceedings, his request for administrative separation was processed in
compliance with applicable regulations with no indication of procedural
error which would tend to jeopardize his rights.

16.  A copy of a DA Form 31, Request and Authority for Leave, in the
applicant's service record shows he was allowed to go on excess leave
pending approval of his request for discharge in lieu of trial by court-
martial.  The DA Form 31 show the applicant departed from Fort Knox on 25
March 1977.

17.  The applicant's record contains a copy of an unclassified message,
Date and Time Group 250922Z May 1976, Subject:  Reassignment Under the
Provisions of Section I, Chapter 3, AR 614-200, from the Commander, US Army
Military Personnel Center [now the US Army Human Resources Command], which
authorized the applicant's reassignment to the US Army Training Center,
Fort Leonard Wood, Missouri, with a stabilized assignment to that station
until 19 May 1977.

18.  The applicant's service record contains a copy of Special Orders
Number 160, paragraph 3621, prepared by Headquarters, US Army Europe and
Seventh Army, dated 8 June 1976.  These orders reassign the applicant to
the US Army Training Center, Fort Leonard Wood, with a reporting date of 17
June 1976.
19.  On 16 August 1976, a letter was written to the Commander, US Army
Regional Personnel Center-Baumholder, by officials at Fort Leonard Wood.
In this letter, it was reported the applicant had been picked up AWOL, on
16 March 1976, at Fort Campbell, and was attached and processed for a
compassionate reassignment.  On 14 May 1976, the applicant had been
released from attachment because he had departed AWOL.  Since he was in
an AWOL status, he had not reported to Fort Leonard Wood by that date.

20.  The applicant submitted a copy of a DA Form 4187, Personnel Action,
prepared by the Commander, 1st Battalion, 39th Infantry, showing his
status was changed from "Present for Duty (PDY)" to "Absent Without Leave
(AWOL)" on 15 March 1976.  The DA Form 4187 is dated 13 July 1977.

21.  The applicant submitted a second DA Form 4187 showing his status was
changed from "AWOL" to "Dropped from the Rolls (DFR)" on 16 June 1976.  The
DA Form 4187 is dated 13 July 1977.

22.  The applicant submitted a copy of a letter the Commander, Combat
Support Company, 1st Battalion (Mechanized), 39th Infantry, wrote to the
applicant's mother, on 21 June 1977.  In this letter, the commander
informed the applicant's mother he had been AWOL since 15 May 1976 and was
subsequently dropped from the rolls of the unit.

23.  The applicant submitted a copy of a letter from the Social Security
Administration, dated 27 March 2001.  This letter notified him of a
decision in response to a claim he submitted to that agency for disability
benefits.  Details pertinent to the applicant's disability are not given.

24.  In the letter to his MOC, the applicant alleges that he had a
conversation with his sergeant and was given permission just to contact him
since he had wrecked his motorcycle.  The applicant did not provide any
documentary evidence of this conversation at the time he was charged with
AWOL, when he requested an upgrade of his discharge, and now, with his
request for reconsideration for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

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.  As in the original determination arrived at by the Board, there is no
medical documentation to show the applicant sustained a medically
disqualifying injury to his back while he served on active duty and that he
was referred to either a medical evaluation or a physical evaluation board
for processing for physical disability reasons.

3.  There is evidence the applicant was injured in a traffic accident while
he was the operator of a motorcycle.  In this accident, he sustained an
injury to his left foot and to his head; however, these injuries were
categorized as "minor" by medical treatment personnel at the US Army
Hospital at Fort Campbell.  As such, the injuries were not sufficiently
severe to result in his medical disqualification and separation from the
Army for physical disability reasons.

4.  At the time the applicant was being processed for separation, in lieu
of trial by court-martial, he submitted a statement in his own behalf.  In
this statement he wrote about his mother's health, how it had become worse,
and how he had spent the last few months his mother had in this world with
her.  He also wrote that since he had been away from the Army so long he
had found it hard to adjust to Army life and therefore, the reason for his
going AWOL.

5.  The evidence show the applicant had been away from the Army previously.
 After having served successfully through his first enlistment, which
included a tour of duty in Vietnam in an administrative military
occupational specialty, he had taken a break-in-service of a duration of 2
years, 3 months, and 7 days.  After his reenlistment, he seemed to readjust
to Army life.  He served 1 year, 5 months, and 11 days of his reenlistment
contract before failing to return to his unit in Germany after being given
ordinary leave.

6.  The applicant's contention that no one would help him is without merit.
 After returning to military control after he was declared AWOL by his unit
in Germany, Army officials at Fort Campbell attached him to the personnel
control facility for the purpose of his applying for a hardship discharge.
When his request was disapproved, they showed compassion for his situation
and allowed him to remain attached to the unit while he processed a request
for a compassionate reassignment.  It was at this time the applicant
departed AWOL from that unit and location and was dropped from the rolls of
the organization.  While he was AWOL, the Army approved his compassionate
reassignment to Fort Leonard Wood, with stabilization at that station for a
one-year period.  The Army followed through by ordering the publication of
reassignment orders for the applicant.
7.  The evidence shows that after being AWOL a total of 302 days, the
applicant surrendered himself to military authorities at Fort Knox and
voluntarily requested discharge to avoid a court-martial that could have
resulted in his receiving a punitive discharge.  The under other than
honorable conditions discharge the applicant received was normal and
appropriate under regulatory guidance in effect, and his overall record of
service clearly did not support a general or honorable discharge at the
time, nor does it support an upgrade now.

8.  The Board acknowledges the applicant's desire to have his under other
than honorable conditions discharge upgraded to enable him to make
application to the VA for medical benefits; however, the Board does not
grant upgrades of discharges for the purposes of qualifying applicants for
benefits administered by that agency.

9.  It is apparent from the dates shown on documents the applicant
submitted, the applicant's former unit in Germany was attempting to
administratively correct their records after the applicant had already
submitted his request for discharge in lieu of trial by court-martial, and
after he had been discharged on 5 May 1977.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JCR___  __DWT__  __RJW__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR20050008918, dated 16 March 2006.




                                  ______________________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060010821                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070524                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19770505                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.0133                                |
|3.                      |144.7100                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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