IN THE CASE OF:	  

		BOARD DATE:	  	  30 December 2008

		DOCKET NUMBER:  AR20080016826 


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, as the widow of a deceased former service member (FSM), requests that her late husband's discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that the FSM died on 25 July 2008 and he thought the papers for his honorable discharge had been taken care of years ago.  She requests a discharge upgrade to honorable so she can give the FSM a proper burial.  She points out that he served his time in the Army, that he never got into trouble after his discharge, and that he wished he had stayed in the Army to retire. 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); a death certificate; a record of marriage; Social Security cards; and a DD Form 214 (Report of Separation from Active Duty).

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 15 June 1976 for a period of 
3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 71B (clerk typist).  

3.  On 10 February 1977, nonjudicial punishment was imposed against the FSM for being absent without leave (AWOL) from 18 January 1977 to 31 January 1977.  His punishment consisted of a forfeiture of pay and reduction to E-1 (suspended).  On 23 February 1977, the suspended portion of the punishment was vacated.

4.  On 3 March 1977, nonjudicial punishment was imposed against the FSM for being AWOL from 13 February 1977 to 16 February 1977.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

5.  On 27 April 1977, nonjudicial punishment was imposed against the FSM for being AWOL from 19 March 1977 to 16 April 1977.  His punishment consisted of a forfeiture of pay and extra duty.

6.  The FSM was pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability when he went AWOL on 1 July 1977.  He was apprehended by civilian authorities and returned to military control on 
5 December 1977.  On 7 December 1977, charges were preferred against the FSM for the AWOL period.  

7.  On 9 December 1977, the FSM consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.
   
8.  On 22 December 1977, the separation authority approved the FSM's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

9.   Accordingly, the FSM was discharged under other than honorable conditions on 12 January 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 
1 year and 7 days of creditable active service with 202 days of lost time due to AWOL.

10.  There is no indication in the available records which shows the FSM applied to the Army Discharge Review Board within its 15-year statute of limitations.

11.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the 
individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  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.  

13.  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.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  The FSM’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however he elected not to do so.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The FSM’s record of service included three nonjudicial punishments and 202 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the FSM's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

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
      
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)                                         AR20080016826





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ABCMR Record of Proceedings (cont)                                         AR20080016826



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