RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  08 May 2008
	DOCKET NUMBER:  AR20070014452 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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

2.  The applicant essentially states that she knows and believes that her late husband was a good man who loved his country, but that he felt that going to Vietnam was something he should not do.  She also states that he did not run from the draft, nor did he go to Canada, but those people were given amnesty for running and not even going.  As a result, she is requesting reconsideration on the type of discharge her late husband received.  She further states that they were married for more than 25 years until he passed away in April 1997.  She also states that her late husband did not go to Vietnam because he did not believe in fighting, and that he was a Christian man who was very active in church.  She also states that he was very good to his family, and thinks that he deserved an upgraded discharge for his family.  She concluded by stating that it has been very hard on her since her late husband passed away, and that she misses him very much.

3.  The applicant provides a self-authored letter; the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and Certificate of Death; their marriage certificate; and a letter, dated 27 July 2007, from the North Carolina Department of Administration in support of this 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's military records show that he was inducted into the Army of the United States on 5 May 1970.  He completed basic and advanced individual 
training and was awarded military occupational specialty 51D (Mason).  He was then scheduled to complete a tour in Vietnam, and was temporarily assigned to the United States Army Overseas Replacement Station at Fort Lewis, Washington.  However, prior to departing for Vietnam, the FSM went absent without leave (AWOL) on or about 23 July 1971, and remained so absent until he was apprehended by civil authorities on or about 26 June 1972.  

3.  On 29 June 1972, the FSM voluntarily requested discharge for the good of the service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel).  In his request, the FSM indicated that he had not been subjected to coercion with respect to his request for discharge.  He also acknowledged that he had been advised as to the provisions of Chapter 10, Army Regulation 635-200 and of the implications that were attached to his request for discharge in lieu of trial by court-martial.

4.  Also in his request, the FSM understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also acknowledged that he had been advised as to the possible effect of an undesirable discharge, and understood that would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration [what is now the Department of Veterans Affairs], and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  The FSM also stated that he was furnished a list containing most Federal veterans' benefits and the effect of an undesirable discharge upon each listed benefit.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He further acknowledged that he had been advised that he could make a statement in his own behalf, but that he elected not to make such a statement.  He also indicated that prior to completion of his request for discharge, he had been afforded the opportunity to consult with appointed counsel or military counsel of his own choice, if he/she was reasonably available, or civilian counsel at his own expense.  However, the FSM declined the opportunity to consult with counsel.  

5.  On 12 July 1972, the proper separation authority approved the FSM's request for discharge for the good of the service, and directed that he be furnished a 
DD Form 258A (Undesirable Discharge Certificate).  He also directed that the FSM be reduced to the lowest enlisted grade.  On 14 July 1972, the FSM was discharged accordingly.

6.  On 24 June 1977, the Army Discharge Review Board (ADRB) denied the FSM's petition to upgrade his discharge.

7.  In a hearing, dated 4 April 1979, the ADRB voted unanimously to deny the FSM relief under the Department of Defense (DOD) Special Discharge Review Program (SDRP), and indicated that the FSM had no primary criteria and did not qualify under the secondary criteria.  It also voted to deny the FSM relief under historically consistent, uniform standards enacted by Public Law 95-126, dated 
8 October 1977.  The ADRB also could find nothing in mitigation or extenuation for the FSM's long AWOL, and on that basis determined that a recharacterization of his service was not warranted.

8.  In a letter, dated 26 December 1979, the ABCMR informed the FSM that his application was denied pursuant to the administrative procedures established by the Secretary of the Army for the guidance of the Board for Correction of Military Records.  Accordingly, a de nova review of the FSM's case is warranted in lieu of this case being considered as a reconsideration of his previous request.

9.  The applicant essentially stated that she knows and believes that her late husband was a good man who loved his country, but that he felt that going to Vietnam was something he should not do.  She also stated that he did not run from the draft, nor did he go to Canada, but those people were given amnesty for running and not even going.  As a result, she is requesting reconsideration on the type of discharge her late husband received.  She further stated that they were married for more than 25 years until he passed away in April 1997.  She also stated that her late husband did not go to Vietnam because he did not believe in fighting, and that he was a Christian man who was very active in church.  She also stated that he was very good to his family, and thinks that he deserved an upgraded discharge for his family.  She concluded by stating that it has been very hard on her since her late husband passed away, and that she misses him very much.

10.  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.  A discharge under other than honorable conditions is normally considered appropriate; however, at the time of the FSM’s separation, an undesirable discharge was normally considered appropriate.

11.  On 4 April 1977, the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 
28 March 1973.  This program, known as the DOD SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

12.  On 8 October 1977, Public Law 95-126 was enacted.  This legislation denied DVA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the DOD SDRP and certain other programs.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

13.  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.

14.  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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

16.  The Army Board for Correction of Military Records may elect to change the punishment and/or the characterization of service if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, the widow of a deceased FSM, contends that his undesirable discharge should be upgraded to an honorable or general discharge. 

2.  The applicant's contentions that the FSM was a Christian man who was very active in church, and also very good to his family are not questioned.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

3.  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.

4.  It is clear that the FSM was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As the applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that the FSM's rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the FSM's discharge accurately reflects his overall record of service.

5.  After a thorough review of the available records, there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Therefore, there was no cause found for clemency.

6.  The FSM's record of service shows that he went AWOL prior to departing for a tour in Vietnam, and that he remained absent until apprehended by civil authorities more than 11 months later.  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 an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070014452



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508