IN THE CASE OF:	  

		BOARD DATE:	        05 MAY 2009

		DOCKET NUMBER:  AR20090000371 


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 her deceased husband's undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that her deceased husband, a former service member (FSM), was on leave when she gave birth to their first son and that the FSM requested an extension of his leave.  However, by the time he received the approval, the unit had already listed him as being absent without leave (AWOL).  She goes on to state that the FSM served this country and chose to deploy to Vietnam and not run to Canada as many did.  She continues by stating that the FSM died of lung cancer as a result of Agent Orange that was used in Vietnam.

3.  The applicant provides in support of her application a copy of her marriage license and the FSM's death certificate.

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 in Montgomery, Alabama on 29 January 1965, for a period of 3 years.  He completed his training at Fort Jackson, South Carolina and was transferred to Hawaii for duty as a supply clerk.  He was assigned to the 25th Supply and Transportation Battalion.

3.  On 21 July 1965, the FSM was convicted pursuant to his plea by a special court-martial of being AWOL from 17 May through 13 June 1965.  He was sentenced to perform hard labor for 2 months and to a forfeiture of $25.00 per month for 4 months.  On 2 August 1965, the convening authority suspended the unexecuted portion of the sentence pertaining to a forfeiture of pay until 
28 October 1965, unless sooner vacated.

4.  On 18 October 1965, the FSM was transferred to Vietnam with his unit and served as a subsistence storage specialist until he departed Vietnam on 
30 October 1966.  He was initially transferred to the Overeseas Replacement Company at Fort Hamilton, New York and on 5 December 1966 he was transferred to Fort Stewart, Georgia. 

5.  On 29 August 1967, the FSM was convicted pursuant to his plea by a special   court-martial of being AWOL from 29 July through 14 August 1967.  He was sentenced to confinement at hard labor for 5 months, a forfeiture of pay for 5 months and reduction to the pay grade of E-1.  

6.  On 17 October 1967, the convening authority told the FSM that he was suspending his sentence to give him a chance to prove himself.  On 18 October 1967, the convening authority suspended the unexecuted portion of the FSM’s sentence pertaining to confinement at hard labor for 123 days, unless sooner vacated.

7.  The FSM again went AWOL on 8 November 1967 and remained absent until he was returned to military control on 15 November 1967.  On 16 November 1967, the convening authority vacated the suspended portion of the FSM’s punishment and he was returned to confinement.  The record is silent as to any punishment imposed for this AWOL offense.

8.  On 25 April 1968, the FSM was convicted pursuant to his plea by a special       court-martial of being AWOL from 25 March through 4 April 1968.  He was sentenced to confinement at hard labor for 6 months.

9.  On 28 May 1968, the FSM's commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-212 for unfitness due to an established pattern of shirking (AWOL).  The FSM was advised to consult with legal counsel before making a decision regarding his rights.  The FSM elected to acknowledge the notification on the same day.

10.  The appropriate authority approved the recommendation for discharge on 1 July 1968 and directed that the FSM be issued an Undesirable Discharge Certificate.

11.  Accordingly, on 2 July 1968, the FSM was discharged under the provisions of Army Regulation 635-212 for unfitness - due to an established pattern of shirking and issued an Undesirable Discharge Certificate.  He had served 
2 years, 8 months and 28 days of total active service and he had 246 days of lost time due to being AWOL and in confinement. 

12.  There is no evidence in the available record to show the FSM ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members who established a pattern of shirking or who were involved in frequent incidents of a discreditable nature with civil and/or military authorities, were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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.

15.  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 FSM’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to have jeopardized his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case and his overall record of service.

3.  The applicant's contentions were considered.  However, the FSM's service does not rise to the level of honorable service when compared to his numerous absences and court-martial convictions.  The FSM was given the opportunity to serve successfully and end his service honorably and apparently he failed to do so.  Accordingly, there appears no basis to warrant an upgrade of his discharge.

4.  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 FSM’s record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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.


      _______ _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)                                         AR20090000371



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ABCMR Record of Proceedings (cont)                                         AR20090000371



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