RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080001301 


	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:




Chairperson



Member



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 request that her husband's, a deceased former service member (FSM), discharge be upgraded.

2.  The applicant states, in effect, that the FSM made a mistake during his military service because he was young and immature.  The applicant continues that she was married to the FSM for 30 years.  The applicant concludes that she is disabled and unable to work and that she would like to receive medical benefits from the Army.

3.  The applicant provides copies of the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a Marriage Certificate, dated 3 December 1977; a Certificate of Death, dated 16 September 2007 in support of this application.

CONSIDERATION OF EVIDENCE: 

1.  The FSM's records show that he entered in the Regular Army on 6 April 1962, at the age of 19.  Upon completion of basic combat training and advanced individual training, the FSM was awarded military occupational specialty (MOS) 140 (Field Artillery Specialist).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.

2.  The FSM’s records show that he was awarded the Marksman Marksmanship Qualification Badge with M-14 Rifle Bar.  

3.  The FSM's records do not show any significant acts of valor during his military service.

4.  The record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  on 21 February 1963, willfully being absent without leave (AWOL) from three reveille formations and one announced formation in a period of one month; on 1 May 1963, while at Camp Hiday, Korea, did sleep while posted as a sentinel of the guard on 27 April 1963; and on 30 September 1963, at Camp Hiday, Korea, breaking restriction on 27 September 1963.

5.  On 24 January 1964, the FSM was convicted by a special court-martial (SPCM) of being AWOL during the periods 16 December 1963 through 19 December 1963; 21 December 1963 through 2 January 1964; and 4 January 1964 through 9 January 1964.  The FSM's sentence consisted of hard labor with confinement for 6 months, a forfeiture of $20.00 pay per month for 6 months, and a reduction to the grade of private (E-1). 

6.  Special Court-Martial Order Number 5, dated 11 May 1964, shows that effective on 13 May 1964, the unexecuted portion of the sentence to confinement at hard labor for 6 months, and forfeiture of $20.00 pay per month for 6 months was remitted without further action. 

7.  On 4 March 1964, the FSM was referred to the Mental Hygiene Consultation Division, Fort Benning, Georgia for a psychiatric evaluation for separation.  The examining psychiatrist who is an Army medical doctor states that the FSM was and is mentally responsible; able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings.  The Army medical doctor stated that the FSM had no disqualifying mental defects sufficient to warrant disposition through medical channels.

8.  On 24 March 1964, the unit commander notified the FSM of his intent to bring separation action under the provisions of Army Regulation 635-208 (Personnel Separation), for frequent incidents of discreditable nature with civil or military authorities.  The reason for the proposed action was due to being AWOL on three separate occasions; sleeping while posted as a sentinel of the guard; and breaking restriction.  The FSM was advised of his rights, consulted with counsel, and voluntarily waived consideration of his case by a board of officers.  The FSM did not submit a statement in his own behalf.  

9.  On 27 April 1964, the separation authority directed the FSM's separation under the provisions of Army Regulation 635-208 for unfitness and that he receive an Undesirable Discharge Certificate.  On 15 May 1964, the FSM was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the FSM completed a total of 1 year, 8 months, and 21 days of creditable active military service and that he accrued a total of 141 days of lost time due to AWOL and confinement.

10.  Item 11c (Reason and Authority) of the FSM's DD Form 214 contains the entry SPN 28B.  Army Regulation 635-5 (Separation Documents) shows that the SPN code 28B is authorized for separations under the provisions of Army Regulation 635-208 with the following associated narrative reason:  "Involved in frequent incidents of a discreditable nature with civil or military authorities."

11.  On 9 June 1980, the Army Discharge Review Board denied the FSM's petition to upgrade his discharge.
12.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

13.  Army Regulation 635-200 Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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, 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's contention that the FSM's discharge should be upgraded because he was young at the time of his offenses and his family needs access to his Veterans Benefits was carefully considered and determined to be without merit.  

2.  Records show that the FSM was nearly 20 years of age at the time of his offenses.  There is no evidence that indicates that the FSM was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The record confirms that all requirements of law and regulation were met and the FSM's rights were fully protected throughout the separation process.  



4.  The FSM's record of service included three non-judical punishments, one special court-martial for various offenses including sleeping while posted as a sentinel of the guard in Korea, and for breaking restriction.  Additionally, his records do not indicate any significant acts of valor.

5.  Based on his 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, the FSM is not entitled to either a general or an honorable discharge.

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

7.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Veterans Benefits.

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.




      __________X____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001301



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