RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	5 February 2008  
	DOCKET NUMBER:  AR20070011486 


	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.  


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	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 spouse of a former service member (FSM), requests, in effect, that the FSM's discharge be upgraded to a general, under honorable conditions, discharge.

2.  The applicant stated, in an earlier submitted and returned, DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, in effect, that the FSM is deceased and she is applying for benefits based on his service.

3.  In support of her request, the applicant provides a copy of the FSM's death certificate in which she was named as spouse and as informant at the time of his death.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the FSM enlisted in the Regular Army for 3 years on 6 June 1968.  He successfully completed basic combat and advanced individual training at Fort Leonard Wood, Missouri.  On completion of his advanced training, he was awarded the military occupational specialty 12A, Pioneer.

2.  Following completion of his training, the FSM was assigned to the Republic of Korea as his first duty station.

3.  Item 33 (Appointments and Reductions), of the FSM's DA Form 20, Enlisted Qualification Record, shows he was promoted to the rank and pay grade, Private First Class, E-3, on 11 April 1969, while in the Republic of Korea.

4.  On 2 September 1969, the FSM received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violation of curfew on 31 August 1969.  The imposed punishment was a reduction to pay grade, E-2, forfeiture of $25.00 and restriction to the company area for 14 days.  The FSM did not appeal the punishment.

5.  On 17 September 1969, the FSM received an Article 15 under the provisions of the UCMJ for being disrespectful in language to his superior noncommissioned officer on 16 September 1969.  The imposed punishment was a forfeiture of $25.00, restriction to the company area for 14 days and extra duties for 14 days. The FSM did not appeal the punishment.

6.  The FSM completed his tour of duty in Korea and was reassigned to Fort Hood, Texas, on his return.  The FSM arrived at Fort Hood on 15 January 1970.

7.  On 28 March 1970, the FSM received an Article 15 under the provisions of the UCMJ for engaging in a breach of the peace by wrongfully engaging in a fist fight with another Soldier on 27 March 1970.  The imposed punishment was a forfeiture of $25.00, restriction to the company area for 10 days and extra duties for 10 days.  The FSM did not appeal the punishment.

8.  On 17 April 1970, the FSM absented himself from his unit without authority.  On 26 May 1970, the FSM was dropped from the rolls of his organization.  He remained absent without leave from his unit until 31 May 1970.  On 3 June 1970, he received an Article 15 under the provisions of the UCMJ for this absence.  The imposed punishment was a reduction to pay grade E-2 and forfeiture of $63.00.  The FSM did not appeal the punishment.

9.  Item 38 (Record of Assignments), of the FSM's DA Form 20, shows on his return to military control he was assigned to the 55th Engineer Company, Fort Riley, Kansas.

10.  On 3 August 1970, the FSM received an Article 15 under the provisions of the UCMJ for absenting himself without authority on 27 July 1970 and remaining so absent until 31 July 1970.  The imposed punishment was a reduction to pay grade E-1, forfeiture of $24.00 and restriction and extra duty for 14 days.  The FSM did not appeal the punishment.

11.  On 21 January 1971, the FSM received a summary court-martial.  He was found guilty of absenting himself without authority from his unit on 2 September 1970 and remaining so absent until 21 December 1970 and for absenting himself without authority from his unit on 28 December 1970 and remaining so absent until 6 January 1971.  The applicant was sentenced to a forfeiture of $126.00 per month for one month, and confinement at hard labor for 30 days.  The sentence was approved and ordered executed on the same date.

12.  On 17 February 1971, the FSM underwent a physical examination for the purpose of being recommended for involuntary discharge under the provisions of Army Regulation (AR) 635-206.  He was found qualified for separation.

13.  On 23 March 1971, the FSM absented himself from his unit without authority and remained so absent until 15 February 1972.  On 16 March 1972, charges were preferred against the FSM for this absence.

14.  On 16 March 1972, the FSM voluntarily submitted a request for discharge for the good of the service.  In his request the applicant stated he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The FSM stated he had been advised of the implications that were attached to his request.  He stated he understood that if tried, he could be discharged with a bad conduct or a dishonorable discharge.  He further understood if his request for discharge were accepted, he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate.  He understood that as a result of issuance of such a discharge, he could be deprived of many or all Army benefits and may be ineligible for many or all benefits administered by the Veteran Administration [now the Department of Veterans Affairs] and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

15.  Prior to completing his request for discharge for the good of the service, the FSM was afforded the opportunity to consult with counsel.  He consulted with counsel on 16 March 1972 and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice, he was informed that the decision to submit a request for discharge for the good of the service was his own.

16.  The FSM was advised that he could submit a statement in his own behalf, which would accompany his request for discharge.  The applicant opted to submit a statement in his own behalf.  In his statement, the FSM stated he had absented himself without leave because his father was ill, his mother was only receiving $25.00 per week in child support and he had a wife and a seven week old child and he was needed at home to support his family and give them what they needed.  His absences were for the good of his family and he felt he could no longer be of any service to the Army – his family came first.

17.  On 16 March 1972, the FSM waived the waiting period (48 hours after applying for a discharge under the provisions of AR 635-200, Chapter 10) and applied for excess leave while awaiting a decision on his request for discharge.  Authority for excess leave pending approval of his request for discharge for the good of the service was approved.

18.  The FSM's chain of command unanimously recommended approval of his request for discharge for the good of the service and recommended he be issued an undesirable discharge.

19.  On 28 March 1972, the approving authority, a major general, approved the FSM's request for discharge under the provisions of AR 635-200, Chapter 10, and directed he be issued an undesirable discharge.

20.  On 13 April 1972, the FSM was reported as being absent without leave from the Personnel Control Facility, US Army Garrison, Fort Riley.  As part of his request for excess leave, the FSM stated the leave would terminate on the date indicated on his leave orders or when he was telephonically notified to report back to the Personnel Control Facility.  Unit Orders Number 50, paragraph 1, prepared by the Holding Company, USA Personnel Control Facility, dated 17 March 1972 show he was to return to the Personnel Control Facility on 13 April 1972.

21.  The applicant was discharged in absentia, under the provisions of AR 635-200, Chapter 10, for the good of the service, in the rank and pay grade, Private, E-1.  He as issued an undesirable discharge, with his service characterized as under other than honorable conditions, on 21 April 1972.

22.  On the date of his discharge, the FSM had completed 2 years, 4 months, and 15 day, creditable active military service, with 278 days lost prior to his normal expiration of term of service (ETS) and 263 days lost subsequent to his ETS.

23.  There is no evidence that the FSM applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

24.  AR 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 submit, at any time after the charges have been preferred, 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, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

25.  AR 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, 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.  The FSM's entire record of service was reviewed.  This review revealed the FSM had a long history of misconduct.  The evidence shows he was punished under Article 15 of the UCMJ for:  violation of curfew while he was in Korea, being disrespectful in language to a superior noncommissioned officer, engaging in a breach of peace by wrongfully engaging in a fist fight with another Soldier at Fort Hood, and by repeatedly absenting himself from his unit without authority.  The evidence also shows he received a summary court-martial and was found guilty for twice having absented himself from his unit without authority.

3.  On 16 March 1972, charges were brought against the FSM for absenting himself from his unit at Fort Riley.  He acknowledged if he were found guilty of the charges, he could receive a bad conduct or a dishonorable discharge.  Rather than face trial by court-martial, the FSM chose to apply for a discharge for the good of the service.

4.  The evidence shows that during the period of his service, the FSM completed 2 years, 4 months, and 15 day, creditable active military service, and had a total of 541 days lost time both prior to his normal ETS and subsequent to his ETS.

5.  The FSM's record documents that the highest rank and pay grade he held on active duty was Private First Class, E-3.  The record contains no documented acts of valor, achievement, or service now warranting special recognition.

6.  The evidence shows the FSM was discharged, in absentia, under the provisions of AR 635-200, Chapter 10, for the good of the service because he failed to return to the Personnel Control Facility as he was ordered to on 13 April 1972.

7.  In connection with such a discharge under the provisions of AR 635-200, Chapter 10, the FSM was charged with commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the FSM was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the FSM admitted guilt to the stipulated offenses under the UCMJ.

8.  The evidence shows that all requirements of law and regulation were met and the FSM's rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the FSM was aware of that prior to requesting discharge.  It is believed that the reason for discharge, the characterization of service, and the discharge issued were both proper and equitable.

9.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of the FSM's undesirable discharge to general, under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  ___x__  __x___  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 for correction of the records of the individual concerned.





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          CHAIRPERSON


INDEX

CASE ID
AR20070011486
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19720424
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.
144.7100
3.

4.

5.

6.