RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070007994 


	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

Ms. Loretta D. Gulley

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward E. Montgomery

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 FSM SPOUSE’S REQUEST, STATEMENT AND EVIDENCE:

1.  The applicant, spouse of a deceased former service member’s (FSM), requests, in effect, upgrade of the FSM’s undesirable discharge to honorable. 

2.  The applicant states that the FSM was very young and only a boy when he joined the Army, that they were married for 38 years, and that he always regretted what happened.

3.  The applicant provides a copy of the FSM’s Certificate of Death in support of her application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM enlisted in the Regular Army on 28 February 1961, for a period of
3 years.  He completed the required training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was Private First Class (PFC), pay grade 
E-3.

3.  The FSM's record shows no acts of valor, significant achievement, or service warranting special recognition.

4.  The FSM’s records contain a DA Form 24 (Service Record), which shows in Section 6 (Time Lost Under Sec 6(a) APP 2b MCM 51 and Subsequent to Normal Date ETS) that the applicant had 2 periods of being absent without leave (AWOL), from 2 – 23 December 1961 and from 27 December 1961 to 14 March 1962.  There is no record of the applicant receiving nonjudicial punishment for these incidents of AWOL.  Section 6 also shows that the applicant was in civil confinement from 15 March - 13 July 1962.
5.  Section 10 (Remarks) of the same record shows that on 15 March 1962, the FSM was arrested by civil authorities and charged with Breaking and Entering while he was in an AWOL status.  He was held in the Henderson County Jail, Hendersonville, North Carolina in lieu of bond and trial was scheduled for 7 May 1962.  United States Department of Justice, Federal Bureau of Investigation, records show that the applicant was convicted and sentenced to 6 months in civil confinement.  

6.  Special Orders Number 140, Headquarters, Fort Gordon, Georgia, dated
10 July 1962 discharged the FSM under other than honorable conditions with issuance of an Undesirable Discharge Certificate, by reason of conviction by a civilian court during his initial term of active military service.

7.  The FSM was discharged on 13 July 1962, in pay grade E-1, under the provisions of Army Regulation 635-206, with an undesirable discharge, by reason of initially convicted by a civil court during current term of active military service.  He was credited with 9 months and 7 days of total active service this period and 221 days lost time due to AWOL and civil confinement.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-206 (Personnel Separations), in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 37 of the regulation provided, in pertinent part, that the convening authority is authorized to order discharge or direct retention in the military service when disposition of an individual has been made by a domestic court of the US or its territorial possessions.  An undesirable discharge was normally considered appropriate.

10.  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.

11.  Army Regulation 635-200, paragraph 3-7b, 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of the FSM’s discharge.  The applicant has not shown error, injustice, or inequity for the relief requested.  

2.  The applicant’s contentions have been noted; however, the FSM was recommended for discharge from the Army by reason of conviction by civil authorities during his term of active military service and for having 221 days lost time.

3.  In the absence of evidence to the contrary, the FSM’s discharge was conducted in accordance with law and regulations applicable at the time. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KAN__  ___RML_  __EEM  _  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.




___ Kathleen A. Newman ___
          CHAIRPERSON



INDEX

CASE ID
AR20070007994
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/12/06
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.