RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060009413 


	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.




	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, the sister of a deceased former service member (FSM), requests that his undesirable discharge be upgraded to a general discharge. 

2.  The applicant essentially states that she is requesting that the FSM’s discharge be upgraded so that he can receive a government grave marker.

3.  The applicant provides the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 215 (Correction to DD Form 214), death certificate, and her birth certificate in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 6 May 1968, the date of the FSM’s discharge from the Regular Army.  The application submitted in this case is dated 25 June 2006.

2.  The FSM’s military records show that he enlisted in the Regular Army on 
29 July 1966.  He completed basic and advanced individual training and was awarded military occupational specialty 13A (Field Artilleryman Basic).    

3.  During the month of November 1966, the FSM twice accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward a superior noncommissioned officer, and for failing to obey a lawful order.  Collectively, his punishment consisted of 14 days of extra duty, 14 days restriction to the battery area, and forfeiture of $60.00.

4.  On 21 November 1966, the FSM was found guilty by a special court-martial of, while a member of the United States Army Training Center Guard, going without proper authority from his duty section with the intent to abandon the same.  His punishment consisted of a forfeiture of $40.00 pay per month for 
6 months.

5.  On 26 October 1967, the FSM was found guilty by a special court-martial of going absent without leave (AWOL) from 29 March 1967 to 4 May 1967, and for going AWOL again from 3 June 1967 to 10 September 1967.  His punishment consisted of a forfeiture of $64.00 per month for 6 months.


6.  On 18 January 1968, the FSM accepted NJP under Article 15 of the UCMJ for going AWOL from 1 January 1968 to 7 January 1968.  His punishment consisted of a forfeiture of $23.00 per month for 1 month, restriction to the battery area for 14 days, and extra duty for 14 days.

7.  On 26 January 1968, the FSM was found guilty by a special court-martial of failing to go at the time prescribed to his appointed place of duty, and of being disrespectful in language and deportment towards a superior noncommissioned officer.  His punishment consisted of confinement at hard labor for 4 months, and a forfeiture of $68.00 per month for 4 months.

8.  On 23 February 1968, the FSM’s battery commander recommended that he be discharged under the provisions of Army Regulation 635-212 for unfitness.  
He also recommended that the FSM receive an Undesirable Discharge Certificate.

9.  On 8 March 1968, the FSM consulted with legal counsel and was advised of the basis of the contemplated action to separate him for unfitness.  Subsequent to counseling, the FSM completed his election of rights by waiving consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He elected not to submit a statement of rebuttal in his own behalf.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.  

10.  On 23 April 1968, the proper authority approved the FSM’s discharge, and directed that he be issued an Undesirable Discharge Certificate.  On 6 May 1968, the FSM was discharged accordingly.  The FSM’s DD Form 214 shows that he was discharged under the provisions of Army Regulation 635-212, and was furnished with an DD Form 258A (Undesirable Discharge Certificate).  This document also shows that he had 286 days of lost time due to being AWOL and in confinement.  He was credited with completing 11 months and 22 days of active duty service.

11.  On 14 May 1969 and 12 August 1981, the Army Discharge Review Board denied the FSM’s petition to upgrade his discharge.


12.  The FSM passed away on 2 January 2006.

13.  The applicant essentially stated that she is requesting that the FSM’s discharge be upgraded so that he can receive a government grave marker.
However, eligibility for veteran's benefits does not fall within the purview of the Army Board for Correction of Military Records (ABCMR), nor does the ABCMR grant relief solely for the purpose of an individual obtaining veteran's benefits.

14.  Army Regulation 635-212 (Enlisted Soldiers), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation stated, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, 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.

16.  Army Regulation 635-200, paragraph 3-7b, also 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 her late brother, a deceased FSM, should have his undesirable discharge upgraded to a general discharge. 





2.  While it was clearly understood that the applicant is requesting that the FSM’s discharge be upgraded so that she can obtain a government grave marker, the ABCMR does not grant relief solely for the purpose of an individual obtaining veteran's benefits.

3.  Given the number of instances of misconduct, the applicant failed to provide evidence which proves that the FSM’s discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

4.  Evidence of record also confirms that the FSM’s discharge processing was accomplished in accordance with applicable regulations and that his discharge accurately reflects his overall record of service.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case, and the Board is satisfied that all requirements of law and regulation were met and the rights of the FSM were fully protected throughout the separation process. 

5.  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.

6.  The FSM’s record of service shows that had 286 days of lost time due to being AWOL and in confinement, that he accepted NJP under Article 15 of the UCMJ on three occasions, and was convicted by court-martial on three occasions.  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.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WP___  ___PS  __  ___JP___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.




_____ William Powers________
          CHAIRPERSON




INDEX

CASE ID
AR20060009413
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070313
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19680506
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON
UNFITNESS
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.6400.0000
2.

3.

4.

5.

6.