IN THE CASE OF:	  

		BOARD DATE:	        18 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080011435 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the undesirable discharge of her deceased domestic partner, a former service member (FSM), be upgraded to a general discharge.

2.  The applicant states the FSM passed away on 3 February 2004 and that she is his common law wife of 20 years.  She states that she found papers when she was going through his things and she thought that she would forward them to this agency.  She states that the FSM was requesting a discharge upgrade and that he lost his paperwork in a fire.  She states that the FSM was a most honorable man and that he lived a good life caring for his family and working hard to take care of everyone.  She states that she is not asking for anything except that any lack of discretion be dismissed and that the FSM’s undesirable discharge be changed to a general, under honorable conditions discharge.  

3.  The applicant provides in support of her application, an undated, self-authored letter; an undated DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); a General Power of Attorney; the FSM’s Certificate of Death; and a letter, dated 13 June 2008, addressed to her from the Army Review Boards Agency, Support Division, St. Louis, MO informing her that she must apply to this Board since the FSM’s discharge occurred more than 15 years ago.




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.  On 19 October 1954, the FSM enlisted in the Regular Army in Oklahoma City, Oklahoma, for 3 years, in the pay grade of E-1.  He successfully completed his training as a light vehicle driver.

3.  The FSM was promoted to the pay grade of E-2 on 19 February 1955 and he was promoted to the pay grade of E-3 on 22 July 1955.

4.  Nonjudicial punishment (NJP) was imposed against the FSM on 25 July 1955 for being absent without leave (AWOL) for approximately 5 hours on 23 July 1955.  His punishment consisted of a reduction in pay grade.

5.  The FSM was convicted by a summary court-martial on 6 December 1956, of being AWOL for approximately 1 day on 2 December 1956.  He was sentenced to a reduction in pay grade, a forfeiture of pay and restriction.

6.  On 2 January 1957, NJP was imposed against the FSM for being AWOL for approximately 7 hours on 1 January 1957.  His punishment consisted of extra duty.

7.  The FSM had NJP imposed against him on 2 February 1957 for being AWOL for approximately 45 minutes that day.  His punishment consisted of extra duty.

8.  On 9 March 1957, NJP was imposed against the FSM for being AWOL for approximately 1 hour and 45 minutes on 8 March 1957.  His punishment consisted of extra duty.



9.  On 22 April 1957, the FSM was convicted by a summary court-martial of wrongfully appropriating a truck of a value of about $6,780.00, the property of the United States Government.  He was sentenced to confinement at hard labor and a forfeiture of pay.

10.  On 27 May 1957, a board of officers convened to determine if the FSM should be separated for unfitness prior to the expiration of his term of service.  The board of officers found that the FSM was qualified for military service and that the evidence did not reveal that he could not be rehabilitated.  The board recommended that the FSM be retained in the service.

11.  The FSM had NJP imposed against him on 1 July 1957 for missing bed check on 30 June 1957.  His punishment consisted of extra duty.

12.  On 3 July 1957, NJP was imposed against the FSM for being AWOL for approximately 45 minutes that day.  His punishment consisted of extra duty.

13.  Another board of officers convened on 18 July 1957 to determine if the FSM should be separated from the Army for unfitness prior to the expiration of his term of service.  The board found that the FSM gave evidence of undesirability within the meaning of Army Regulation 635-208 and that the evidence presented revealed that he could not be rehabilitated.  The board recommended that he be discharged from the service under the provisions of Army Regulation 635-208, for unfitness.  The board further recommended the issuance of an undesirable discharge.

14.  The appropriate authority approved the recommendation for discharge on
23 July 1957.  Accordingly, on 20 August 1957, the FSM was discharge under the provisions of Army Regulation 635-208, for unfitness based on repeated military offenses not warranting trial by court-martial.  He had completed 2 years, 9 months, and 9 days of total active service.  He was furnished an Undesirable Discharge Certificate.

15.  A review of the available records does not show that the FSM ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The FSM’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, the Army has an interest in maintaining its service records to reflect an individual’s service as it existed at the time that the individual served.  The FSM’s records show that he had NJP imposed against him on six separate occasions and he was twice convicted by a summary court-martial.  Considering his numerous acts of indiscipline, it appears that his undesirable discharge appropriately reflects his overall record of service.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080011435



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ABCMR Record of Proceedings (cont)                                         AR20080011435



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