RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 September 2007
      DOCKET NUMBER:  AR20070003033


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr, Dean A. Camarella             |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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, reconsideration of his earlier
appeal for an upgrade of his under other than honorable conditions (UOTHC)
discharge.

2.  The applicant states, in effect, he is in desperate need of medical and
disability from the Department of Veterans Affairs (VA) due to his severe
medical condition.

3.  The applicant provides no additional documentary evidence in support of
his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Acting as counsel to the applicant, the American Legion requests, in
effect, that the applicant's UOTHC discharge be upgraded.

2.  Counsel states, in effect, that the applicant's unit commander failed
to provide the applicant proper assistance and advice given the situation
that developed while the applicant was home on leave given the applicant
was the sole-surviving offspring for his seriously ill and failing parents.
 Counsel states that the applicant's commander failed him at a time when
the applicant had a genuine crisis as a son and young noncommissioned
officer (NCO).  He further states that the applicant and his unit received
ineffective counsel from the Judge Advocate General (JAG) attorney relative
to the circumstances causing (or mitigating) the applicant's absent without
leave (AWOL) offense.  Counsel claims the unit and applicant should have
been advised and been able to attempt to retroactively submit the
applicant's request and documentation for a hardship discharge.  The
commanders could have exercised this humane prerogative, in lieu of
charging the applicant since he could establish and document mitigating
circumstances as the sole surviving on hand off spring.  That prerogative
was available as advice to the commander and the applicant and should have
been given in fairness to the applicant.

3.  Counsel further states that legal counsel given the applicant by his
unit and the JAG counsel was ineffective, untimely and incomplete.  Counsel
claims the applicant has suffered long enough with this UOTHC discharge
given his mitigating circumstances.  Counsel claims the applicant gave many
years of honorable service and the UOTHC discharge is too harsh given the
applicant was doing the right thing as a son, when balanced against
peacetime service at a time when his unit was not deployed.
4.  Counsel states the applicant had humanitarian reasons and the need to
serve his parents.  This applicant's most serious mistake was his poor
judgment by not submitting and fighting for his hardship discharge.
Counsel states that the American Legion supports the applicant's issues and
urges the Board to consider clemency and a discharge upgrade for this
veteran.  Counsel claims the applicant was a good draft and volunteer
Soldier who obviously served very well to rise to E-5.  Given his command
did not empathize with and invest in the right way to handle the
applicant's life situation was inexcusable.  Clearly the applicant made a
big error in not submitting his hardship discharge paperwork; however,
someone in the unit clearly should have connected with and provided timely
assistance to the applicant, who had a genuine life crisis to face.
Suddenly taking responsibility for older parents is a culture shock for
wise, married adults who possess wisdom from years of life experience, the
applicant was young and not well educated who knew how to serve, but who
did not handle his new sudden life situation well.  Given how he served
before his family versus service dilemma, the applicant does not deserve to
now live under the stigma of this UOTHC discharge.

5.  Counsel provides a statement in support of the application.

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 Correction of Military Records (ABCMR) in Docket Number
AR20060008805, on 6 February 2007.

2.  During the original review of the case, the Board determined the
applicant's separation processing was administratively correct and in
conformance with applicable regulations.  It further determined there was
no indication that the applicant's request for discharge to avoid a trial
by court-martial that could have resulted in a punitive discharge, was made
under coercion or duress.  The Board accepted the applicant's description
of his father's health condition and the general situation.  However, it
found no evidence or argument that the applicant's AWOL was a viable
solution.  It also noted the applicant's current health condition was
unfortunate, but that it was not relevant to the issue under consideration
and did not provide a basis for upgrading his discharge.  It further noted
that the Department of Veterans Affairs (VA) could provide benefits it
deemed appropriate under its own regulations.  The Board noted the
applicant's service and accomplishments; however, concluded these did not
outweigh the offense of an NCO going AWOL because he chose to place other
considerations ahead of his sworn duty.
3.  The applicant's counsel provides a statement as new argument.  In this
statement counsel argues that there are five equity and propriety issues in
this case that should support upgrading the applicant's discharge.  Counsel
argues that the applicant's commander failed to provide proper assistance
and advice given the applicant's situation at home; that the applicant and
his unit received ineffective counseling from their JAG counsel; and that
this legal counsel was ineffective, untimely and incomplete.  Counsel
further claims the applicant has suffered long enough with the UOTHC
discharge, and that the applicant gave many years of honorable service,
which rendered the UOTHC discharge too harsh.

4.  The applicant's record shows that he initially enlisted in the Regular
Army and entered active duty on 29 November 1972.  He was trained in and
awarded military occupational specialty (MOS) 13B (Field Artillery).

5.  On 29 August 1974, the applicant was honorably discharged for the
purpose of immediate reenlistment after completing 1 year, 9 months, and 1
day of active military service. On 30 August 1974, he reenlisted for 3
years.

6.  On 30 May 1977, he was honorably discharged for the purpose of
immediate reenlistment after completing a total of 4 years, 6 months, and 2
days of active military service.  On 31 May 1977, he reenlisted for 3
years.

7.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that he was promoted to sergeant/E-5
(SGT/E-5) on 26 April 1976, and that this is the highest rank he attained
while serving on active duty.  Item 9 (Awards, Decorations & Campaigns)
shows that during his active duty tenure, he earned the National Defense
Service Medal, Army Commendation Medal, Armed Forces Expeditionary Medal-
Korea, and the Army Good Conduct Medal (2nd Award).

8.  The applicant's record confirms he accepted non-judicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on three separate occasions between March and November 1976.


9.  On 15 March 1976, the applicant accepted NJP for failing to go to his
appointed place of duty at the time prescribed.  His punishment for this
offense was a forfeiture of $100.00 and 14 days restriction.

10.  On 2 April 1976, the applicant accepted NJP for failing to go to his
appointed place of duty at the time prescribed.  His punishment for this
offense was a forfeiture of $100.00 and 14 days restriction.
11.  On 22 November 1976, the applicant accepted NJP for being derelict in
the performance of his duties.  His punishment for this offense was a
forfeiture of $35.00.

12.  On 10 April 1979, the applicant departed AWOL from his unit in Hawaii,
and on 9 May 1979, he was dropped from the rolls of his organization as a
deserter.  He remained away for 161 days until returning to military
control at Fort Bragg, North Carolina on 17 September 1979.

13.  On 19 September 1979, a Charge Sheet (DD Form 459) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the UCMJ by being AWOL from on or about 10 April 1979 through
on or about
18 September 1979.

14.  On 26 September 1979, the applicant consulted with legal counsel and
was advised of the basis for the contemplated trial by court-martial and
the maximum permissible punishment authorized under the UCMJ, of the
possible effects of an UOTHC discharge if his request for discharge were
approved, 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 trial by court-martial.  In his discharge
request, the applicant acknowledged that he understood the possible effects
of an UOTHC discharge, and that as a result of the issuance of such a
discharge, he would be deprived of many or all Army benefits, that he would
be ineligible for many or all benefits administered by the VA, and that he
could be deprived of his rights and benefits as a veteran under both
Federal and State law.  He further indicated that he understood that he
could encounter substantial prejudice in civilian life because of an UOTHC
discharge.

15.  The applicant submitted a statement in his own behalf with his
discharge request.  In it, he requested to be considered for a general,
under honorable conditions discharge (GD).  He stated that he entered the
Army in 1972, and was an NCO within 3 years.  He stated that he received
two Article 15s when he was in Korea, both for minor offenses.  He received
only 50 dollar fines and 7 days restriction.  He claimed that other than
his AWOL charge, he had been a model Soldier.  He received many letters of
appreciation and was elected battalion NCO of the quarter, also during the
same period he received the two Article 15s.  He also stated that he
received the Army Commendation Medal.  He stated that the reason he went
AWOL and for why he was requesting to be discharged was that his father had
suffered a series of heart attacks.  He claimed his father's condition was
and always would be unstable and he felt he was needed at home. He appealed
for justice, citing his over 6 years of service.
16.  On 3 October 1979, the separation authority approved the applicant's
request for discharge and directed he receive an UOTHC discharge and that
he be reduced to the lowest enlisted grade.  On 31 May 1977, the applicant
was discharged accordingly.  The DD Form 214 he was issued at the time
shows he completed a total of 6 years, 5 months, and 12 days of creditable
active military service and accrued 161 days of time lost due to AWOL at
the time of his discharge.

17.  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.
An UOTHC discharge normally is appropriate for a Soldier who is discharged
in lieu of trial by court-martial.  However, the separation authority may
direct a GD if such is merited by the Soldier's overall record of service.
An honorable discharge (HD) is not authorized unless the Soldier's record
is otherwise so meritorious that any other characterization clearly would
be improper.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of counsel that the applicant's unit commander failed
to provide proper assistance and advice, that the applicant and his unit
received ineffective JAG counseling, that the applicant has suffered long
enough with the UOTHC discharge, that the applicant gave many years of
honorable service, and that the UOTHC was too harsh were carefully
considered.  However, there is insufficient evidence to support these
claims.

2.  The evidence of record and independent evidence submitted by the
applicant and his counsel with his original application and with this
reconsideration request, fail to show the applicant ever attempted to
properly resolve his situation through his unit chain of command or other
available channels prior to going AWOL.  It is difficult to view his AWOL
as a youthful mistake given at the time he was an NCO with more than 6
years of service.  As a result, the responsibility to properly resolve his
situation through his chain of command prior to going AWOL was primarily
his.

3.  The evidence of record shows that after consulting with defense
counsel, the applicant voluntarily requested discharge from the Army in
lieu of trial by
court-martial.  All requirements of law and regulation were met and that
the rights
of the applicant were fully protected throughout the separation process.
Contrary to the assertions of counsel, there is absolutely no evidence that
supports the contention that the applicant received ineffective legal
counsel, or that he was improperly counseled by his unit commander.  The
record clearly shows the applicant requested discharge to avoid a trial by
court-martial that could have resulted in his receiving a punitive
discharge.  Therefore, it would not be appropriate or serve the interest of
justice to upgrade the applicant's discharge at this late date.

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JCR  _  __DAC__  __QAS__  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 AR20060008805, dated 6 February 2007.




                                  _____Jeffrey C. Redmann____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070003033                           |
|SUFFIX                  |                                        |
|RECON                   |AR20060008805-2007 02 06                |
|DATE BOARDED            |2007/09/20                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1977/05/30                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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