RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20060000607


      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             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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, that her deceased husband's, a
former service member (FSM), discharge be upgraded.

2.  The applicant states, in effect, that the family would like to order a
government headstone and flag in his honor in return for his duty and
courage for serving in the Republic of Vietnam and our country.

3.  The applicant provides a letter from the Department of Veterans Affairs
Memorial Programs Service Processing Site, dated 21 January 2005; a copy of
a Marriage Certificate, dated 1 February 1980; and a State of Florida
Certificate of Death, dated 20 December 2004 in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 June 1970, the date of the FSM's discharge.  The application
submitted in this case is dated 20 December 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The FSM enlisted in the Regular Army on 27 March 1967 for a period of
3 years.  After completion of basic and advanced individual training, he
was awarded military occupational specialty, 62G (Quarry Machine Operator)
and assigned to 73rd Engineer Company of the 84th Engineer Battalion in the
Republic of Vietnam.  The FSM served in Vietnam during the period 17 August
1967 through 16 August 1968.

4.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following five separate occasions for the offenses indicated:  on 2
December 1967, for being absent without leave (AWOL) on 1 December 1967; on
6 June 1968, for disobeying a
lawful order; on 26 December 1968, for speeding; on 27 February 1969, for
wrongful appropriation of government property; and on 22 May 1969, for
being AWOL during the period 5 May 1969 through 13 May 1969.

5.  Item 44 (Time Lost under Section 972, Title 10, United States Code and
Subsequent to Normal Date ETS) of the FSM's DA Form 20 (Enlisted
Qualification Record) shows the following:

      a.  AWOL during the period 5 May 1969 through 12 May 1969;


      b.  In the hands of civil authority en-route to Fort George G. Meade,
Maryland during the period 13 May 1969 through 20 May 1969;


      c.  Confinement during the period 21 May 1969 through 26 May 1969;


      d.  AWOL during the period 31 May 1969 through 17 June 1969;


      e.  AWOL during the period 30 June 1969 through 9 September 1969; and


      f.  Confinement starting on 10 September 1969 [incomplete entry].

6.  The FSM's service record contains a DD Form 458 (Charge Sheet), dated
23 September 1969, which shows he was charged with two specifications of
being AWOL for the following periods:  31 May 1969 through 18 June 1969 and
30 June 1969 through 10 September 1969.

7.  The FSM's service record contains another DD Form 458, dated 11 May
1970, which shows he was charged with three specifications of being AWOL
for the following periods:  27 June 1969 through 10 September 1969; 6
October 1969 through 16 April 1970; and 25 April 1970 through 27 April
1970.

8.  The FSM's service record contains a DD Form 457 (Investigating
Officer's Report), dated 27 May 1970, which shows the FSM made the
following statement:

      "I came from a split home.  When my father died, I went to live with
my grandparents.  Not too long after that, my grandmother got sick and
died.  From then on, I lived with my grandfather, but a young kid trying to
go to school living with an old man like that just doesn't work out too
well.  I went into the Army in 1967.  Two years later, on 20 April 1969, I
got married.  Just after that (two days thereafter), a woman came to our
house and said she was pregnant and that I was the father.  That was a
pretty rough time.  I'm in the process of a divorce now.  Most of the time
I was gone (AWOL) I was visiting my grandfather.  The papers you have don't
show it, but I turned myself in both of the last two times I went AWOL."


9.  Item 18 (Remarks) of DD Form 457 shows the investigating officer stated
that based on the charges, a special court-martial would be sufficient.
The investigating officer continued that in addition to the unsworn
statement, the FSM had two respectable years of service before he
encountered personal problems and decided to "cop-out."  The investigating
officer concluded that the FSM was AWOL as charged and that his punishment
is in the discretion of the Court-Martial board; however, he believes that
an undesirable discharge with the accompanying forfeiture of service-
connected benefits is commensurate with the offense committed.

10.  On 28 May 1970, the commanding officer of Headquarters, U.S. Army
Garrison Troop Command, Fort Devens, Massachusetts recommended trial by
general court-martial.

11.  On 11 June 1970, the Acting Assistant Adjutant General of
Headquarters, Fort Devens, dismissed the charge and the specifications
against the FSM and discharged him under the provisions of Army Regulation
635-200 (Personnel Separations Enlisted Personnel).

12.  The facts and circumstances surrounding the FSM's discharge are not
contained in the available service records.

13.  The FSM's DD Form 214 shows he was discharged on 17 June 1970 under
the provisions Army Regulation 635-200, SPN 246 [For the good of the
service] Administrative Proceedings.  This form further shows he was
separated in the pay grade of E-1, with a reentry code of RE-3B and issued
an Undesirable Discharge Certificate with service characterized as under
other than honorable conditions.  This form also shows he served 2 years,
5 months, and 9 days of net active service and had 289 days of lost time.

14.  There is no evidence in the available records which show that FSM
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitation.




15.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) 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 undesirable discharge.

16.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

17.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's discharge should be upgraded so
that he can be honored with a headstone and flag for his military service.

2.  Evidence of record confirms that the FSM was charged with offenses that
are punishable under the Uniform Code of Military Justice with a punitive
discharge.

3.  Lacking evidence to the contrary, it is presumed the FSM's separation
processing was accomplished in accordance with the applicable regulation in
effect at the time, that all requirements of law and regulation were met,
that the rights of the FSM were fully protected throughout the discharge
process, and that his discharge accurately reflects his overall record of
undistinguished service.

4.  The FSM's service record shows charges were preferred against him for
being AWOL on two separate occasions.

5.  Based on this record of indiscipline, the FSM's service clearly does
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  Additionally, his service is deemed unsatisfactory in view
of his bad conduct which consists of five nonjudicial punishments, and two
court-martial charges.  Therefore, he is not entitled to either a general
or an honorable discharge.

6.  Accordingly, the type of discharge directed and the reason for
discharge was appropriate considering all of the facts of the case.

7.  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.

8.  The ABCMR does not grant upgrades of discharges for the sole purpose of
obtaining benefits such as a government headstone or flag.

9.  Records show the FSM should have discovered the alleged error or
injustice now under consideration on 17 June 1970, the date of his
separation from active duty; therefore, the time for the FSM to file a
request for correction of any error or injustice expired on 16 June 1973.
However, it would be in the interest of justice to excuse failure to timely
file in this case based on the fact the applicant did not become eligible
to apply to the ABCMR until 29 November 2004, the date of the FSM's death.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_SLP___  _RML___  __JGH___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Based on the fact that the applicant was not eligible to apply until
29 November 2004, the date of the FSM's death, it would be appropriate to
excuse failure to timely file in this case.

2.  The Board determined that 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
for correction of the records of the individual concerned.




                                      _Shirley L. Powell_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060000607                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/06/17                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |SPN 246 (For the Good of the Service)   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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