IN THE CASE OF:	

		BOARD DATE:	      23 JUNE 2009

		DOCKET NUMBER:  AR20090002343 


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, in effect, reconsideration of an earlier request that the under other than honorable conditions (UOTHC) discharge of her deceased father, a former service member (FSM), be upgraded.

2.  The applicant states, in effect, that her father served in the military for 8 years and, therefore, she believes his discharge should be upgraded.  

3.  The applicant provides the FSM's death certificate, his DD Form 214 (Report of Separation from Active Duty) and her birth certificate in support of her application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999022487, on 22 July 1999.

2.  During its original review of the applicant's case, the Board concluded the applicant's discharge processing was accomplished in accordance with the applicable regulations and that his discharge was both proper and equitable.


3.  The FSM's record shows that he enlisted in the Regular Army (RA) on 11 April 1966 and was honorably discharged on 14 March 19068 for the purpose of immediate reenlistment.  He was issued a DD Form 214 for this period of service. On 15 March 1968, after completing 1 year, 11 months, and 4 days of active duty, the FSM reenlisted in the RA for 4 years and entered active on the enlistment under review.  He held and served in military occupational specialty (MOS) 71H (Personnel Specialist) and the highest grade he attained while serving on active duty was specialist five (SP5). 

4.  The FSM's DA Form 20 (Enlisted Qualification Record) shows, in Item 41 (Awards and Decorations), that he earned the following awards during his active duty tenure:  National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Army Commendation Medal, and 2 Overseas Service Bars.  His record documents no acts of valor or significant achievement.  

5.  On 15 April 1969, a Summary Court-Martial (SCM) found the FSM guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 16 December 1968 through on or about 26 March 1969. The resultant sentence was restriction to the limits of Special Processing Detachment, Fort Dix, New Jersey for 30 days.  

6.  The FSM's record contains a DA Form 3836 (Notice of Return of United States Army Members from Unauthorized Absence).  This document shows the FSM departed AWOL on 19 April 1969 and that he was subsequently dropped from the rolls (DFR) of the organization on 4 June 1969.  It further shows the FSM was apprehended and returned to military control on 28 June 1974.

7.  The FSM's record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does include a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows the FSM was separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial, and that he received an UOTHC discharge on 24 July 1974. This document also confirms he completed a total of 10 months and 2 days of creditable active military service during the period covered by the DD Form 214 (15 March 1968-24 July 1974) and that he accrued 1181 days of time lost due to being AWOL.  

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

9.  Army Regulation 635-200 sets forth the basic authority 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 3-7b provides that a general, under honorable conditions discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

10.  Chapter 10 of that enlisted separations 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.  The regulation does allow the issue of a GD or HD if the separation authority determines it is warranted based on the member's overall record of service; however, an UOTHC discharge is normally considered appropriate for members separated under this provision of the regulation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the discharge of her deceased father should be upgraded because he served in the military for 8 years was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.  Further, the applicant should note that her father's honorable service between 11 April 1966 and 14 March 1968, is properly documented in the DD Form 214 the FSM was issued on 14 March 1968.  

2.  The FSM's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does include a properly constituted DD Form 214 that confirms the FSM had accrued 1181 days of lost time due to being AWOL and that identifies the reason and characterization of the FSM's final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The FSM's separation document confirms he was discharged under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the FSM were fully protected throughout the separation process.  

4.  The FSM's record documents no acts of valor or significant achievement.  As a result, this period of service was not sufficiently meritorious to support the issue of an HD or GD by the separation authority at the time of the FSM's discharge, nor does it support an upgrade.  

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 to amend the decision of the ABCMR set forth in Docket Number AR1999022487, dated 22 July 1999.




      _______ _   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)                                         AR20090002343



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ABCMR Record of Proceedings (cont)                                         AR20090002343



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