IN THE CASE OF:	

		BOARD DATE:	26 August 2009    

		DOCKET NUMBER:  AR20090005891 


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, the spouse of the deceased former service member (FSM), requests, in effect, that his undesirable discharge be upgraded to honorable.   

2.  The applicant states that the FSM was very young and immature.  He made poor decisions due to stress and deeply regretted them afterwards.  The FSM was a very good person who made the difference in the lives of many people.  He tried very hard to learn from his early mistakes.

3.  The applicant provides, in support of her application, a copy of 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.  On 15 October 1969, the FSM enlisted in the Regular Army for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).

3.  On 25 May 1970, the FSM was assigned duty as a medical specialist with the 30th Field Hospital in the Federal Republic of Germany.  He was subsequently reassigned within the theater to the 22nd Medical Detachment.  

4.  On 25 January 1971, the FSM was honorably discharged for the purpose of immediate reenlistment.  He had completed 1 year, 3 months and 11 days of creditable active duty.

5.  On 15 December 1971, the FSM was promoted to specialist five, pay grade E-5.

6.  On 10 July 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for writing checks without sufficient funds in his account.  The punishment included a reduction to grade pay grade E-4.

7.  Records show that General Orders Number 1408, Headquarters, United States Army Europe and 7th Army, dated in 1972, awarded the FSM the Army Good Conduct Medal for the period from 15 October 1969 to 14 October 1972.

8.  On 8 June 1973, the FSM returned to the United States for duty as a medical specialist with the 547th Medical Company located at Fort Stewart, Georgia.

9.  The FSM was absent without leave (AWOL) from 15 July 1974 to 12 February 1975.  He was also AWOL from 10 March 1975 to on or about 1 May 1976.

10.  On 7 May 1976, charges were preferred against the FSM under the provisions of the Uniform Code of Military Justice for violation of Article 86, being AWOL, during the period from on or about 10 March 1975 to on or about 1 May 1976.

11.  On 10 May 1976, the FSM consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the FSM voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. 

12.  In his request for discharge, the FSM indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

13.  On 21 May 1976, the separation authority approved the FSM’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 7 June 1976, the applicant was discharged accordingly.  He had completed a total of 4 years and 11 months of creditable active military service and he had accrued 632 days of lost time due to being AWOL.

14.  There is no indication that the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, an undesirable discharge was authorized at the time the applicant was separated.

16.  Under the Uniform Code of Military Justice, the maximum punishment allowed for violation of Article 86 for being AWOL more than 30 days is a dishonorable discharge and confinement for 1 year.

17.  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.

18.  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 contends that the FSM's youth and immaturity were responsible for his misconduct and that his discharge should be upgraded. 

2.  The FSM's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contention that the FSM was young and immature at the time is not sufficiently mitigating to warrant relief.  The FSM had served satisfactorily for almost 3 years before any negative incidents were documented in his records.  He had satisfactory completed his initial training, had been promoted to pay grade E-5, and had been awarded the Good Conduct Medal.  His satisfactory performance demonstrated he had the capacity to serve honorably.  

4.  The FSM had 632 days of lost time which does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, no basis has been established for upgrading his discharge.

5.  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 the aforementioned requirement.

6.  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

_____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)                                         AR20090005891



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ABCMR Record of Proceedings (cont)                                         AR20090005891



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