BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090006819 


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 deceased former service member's (FSM) brother, requests, in effect, that the FSM's discharge be upgraded to reflect an honorable discharge.

2.  The applicant states, in effect, that the FSM's military records show he was awarded the Bronze Star Medal with Oak Leaf Cluster and "V" Device, the Air Medal, the Purple Heart, and the Army Commendation Medal and that these awards are not reflected in the FSM's discharge characterization of service.  He states he was informed by the Veteran's cemetery that his brother, the FSM, could not be buried in a Veteran's cemetery due to the FSM's characterization of service.  He states that he and the FSM's family were not aware of the FSM's discharge characterization of service and believe based on the FSM's awards his discharge is incorrect.  The applicant concludes by stating the FSM's discharge does not reflect the true nature of the FSM's wartime actions and he hopes that a review of the facts will result in a discharge upgrade. 

3.  The applicant provides the following documents in support of his application:

	a.  General Orders Number 970, dated 10 February 1969, issued by Headquarters, Americal Division, which awarded the FSM the Purple Heart;

	b.  General Orders Number 1608, dated 9 March 1969, issued by Headquarters, Americal Division, which awarded the FSM the Bronze Star Medal with "V" Device for action on 23 January 1969 in the Republic of Vietnam;

	c.  General Orders Number 1766, dated 14 March 1969, issued by Headquarters, Americal Division, which awarded the FSM the Army Commendation Medal for meritorious service from 8 January 1969 to 15 January 1969 in the Republic of Vietnam;

	d.  a citation announcing the FSM was presented an Air Medal for aerial flight from 13 January 1969 to 26 March 1969; and 

	e.  the FSM's death certificate and a personal statement from the applicant, dated 12 April 2009.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records are not available for review.  A fire destroyed approximately 18 million service member’s records at the National Personnel Records Center in 1973.  It is believed that the FSM’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of the case.  The available documents consist of the FSM's DD Forms 214 (Armed Forces of the U.S. Report of Transfer or Discharge) with separation dates of 21 November 1967 and 19 November 1970. 

2.  On 5 January 1967, the FSM was inducted into the Army of the U.S.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 21 November 1967, the FSM was honorably discharged to accept a commission as an officer in the U.S. Army.  He was commissioned in the U.S. Army Reserve and ordered to active duty on 22 November 1967 in the Quartermaster Corps.  The highest rank he held was captain/pay grade O-3.

4.  The FSM's discharge packet is not available.  On 19 November 1970, he was discharged under the provisions of chapter 5 of Army Regulation 635-120 with an under other than honorable conditions discharge.  He had served 2 years, 11 months, and 28 days of active service as a commissioned officer and his total net active service equals 3 years, 10 months, and 15 days.

5.  On 31 August 2008, the FSM died.

6.  Army Regulation 635-120 (Officer Resignations and Discharges) in effect at the time implements the statutory provisions of Title 10, U.S. Code, governing officer separations and provides policies and procedures for separating officers from 


active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct, moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100  (Officer Personnel).  The regulation provides that a resignation for the good of the service, when approved at Headquarters, Department of the Army, is normally accepted as being under other than honorable conditions.

7.  Army Regulation 635-100 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.  

DISCUSSION AND CONCLUSIONS:

1.  Although the FSM's discharge packet is not available, there is no evidence that he was not properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is presumed that what the Army did was correct.  Additionally, discharges are not routinely upgrade solely for an applicant to obtain benefits from another Government agency.

2.  Discharges under the provisions of chapter 5 of Army Regulation 635-120  are voluntary requests for resignation for the good of the service when court-martial charges are preferred or an officer is under a suspended sentence of dismissal.  Therefore, it is presumed in this case that the FSM voluntarily submitted his request for resignation from the Army for the good of the service.

3.  In his request for resignation, the FSM would have indicated that he did not desire to appear before a court-martial or board of officers, that he had not been subject to coercion with respect to his resignation, and that he had been advised of and fully understood the implications of his request.  He would have been afforded an opportunity to consult with Judge Advocate General's Corps legal officers or civilian counsel retained by him.



4.  Per requirements in Army Regulation 635-120, he would have been afforded an opportunity to present matters of explanation, mitigation, or defense to include presenting statements, evidence, or the FSM had the option to remain silent.  An Article 32 investigation under the provisions of the Uniform Code of Military Justice is conducted prior to general court-martial charges or specifications for trial.  An Article 32 investigation is a thorough and impartial investigation of all the matters set forth in the charges, consideration of the form of the charges, and a recommendation as to the disposition that is made in the interest of justice and disciple.  The investigating officer is normally one grade higher than the officer under investigation.

5.  In compliance with established regulations, the FSM would have acknowledged that if his resignation was accepted his service may be considered as being under other than honorable conditions.  He must have 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, and that he could be deprived of his rights and benefits as a Veteran under both Federal and State law.

6.  The FSM's significant wartime achievements are noted.  However, it must be presumed that his awards and decorations were taken into consideration when he was allowed to request an administrative discharge and his service was characterized as under other than honorable conditions instead of being tried by court-martial.  

7.  In view of the foregoing, there is insufficient basis to upgrade the FSM's discharge with a separation date of 19 November 1970 to honorable.  

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)                                         AR20090006819



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006819



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1