IN THE CASE OF:	  

		BOARD DATE:	         3 November 2009

		DOCKET NUMBER:  AR20090007063 


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 to continue her deceased husband's (a former service member [FSM]) request to upgrade his undesirable discharge.

2.  The applicant states her husband was always regretful of the decision he made in 1971.  She states he never got over Vietnam.  She provides a history of their life together after the FSM returned from Vietnam.  She states the FSM was told he was going back to Vietnam and he was afraid he would never see his sick brother again.  She states the FSM's brother had only months to live and he died on 8 May 1971.  She describes the jobs her husband held and the birth of their two children.  She states the FSM retired from the City of Dalton as a Facilities and Maintenance Coordinator after having been diagnosed with diabetes and later he was diagnosed with lung cancer.  She states her husband was never proud of the way he left the Army and his children don't know the reason he was discharged.  

3.  The applicant provides, in support of her application, copies of the FSM's initial application to the Board, a letter from Department of Veterans Affairs (VA), her marriage certificate, and the FSM's death certificate.



CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he was inducted into the Army of the United States on 3 June 1969.  He then enlisted in the Regular Army on 10 June 1969 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 68G (Airframe Repairman).

2.  The FSM was assigned to the 7th Squadron, 1st Air Cavalry Division in the Republic of Vietnam during the period from 19 February 1970 to 26 December 1970.

3.  The FSM's personnel records show he was absent without leave (AWOL) from 30 January 1971 to 23 February 1971.  The records do not contain a disposition for this period of AWOL.

4.  On 1 May 1972, court-martial charges were preferred by Headquarters Command, Fort Campbell, Kentucky, against the FSM for being AWOL during the period from on or about 3 March 1971 until on or about 23 March 1972.

5.  On 25 August 1972, the FSM signed his request for discharge for the good of the service indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the FSM acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

6.  The FSM's commander recommended approval of the FSM's request for discharge and that he be furnished an Undesirable Discharge Certificate.

7.  On 8 May 1972, the appropriate authority approved the FSM's request for discharge for the good of the service and directed that he be furnished an Undesirable Discharge Certificate.

8.  On 11 May 1972, the FSM was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service.  He had completed 1 year, 9 months, and 26 days of active service during this period that was characterized as under conditions other than honorable.  He had 410 days of time lost.
9.  There is no indication that the FSM applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

10.  The applicant provided  a copy of the FSM's initial request, dated 
22 September 2008, to upgrade his discharge.  The FSM stated he believed the character of his discharge was unjust because he had served his year in Vietnam honorably.  The FSM stated he was emotionally and mentally unstable when he was told he would be returning to Vietnam.  The FSM stated his brother was dying.  The FSM stated he filed a claim for compensation with the VA in the hopes that his discharge would be upgraded.  He stated he was diagnosed with diabetes type II and squamous cell carcinoma of the lung with metastasis to the liver.  He stated his prognosis was less than 6 months life expectancy.  The FSM also stated he suffered severely with symptoms of post-traumatic stress disorder (PTSD). 

11.  A letter, dated 5 September 2008, from the VA to the FSM advised him they had received his claim for benefits.  The letter also advised the FSM they needed additional information.

12.  On 14 October 2008, the FSM died from pneumonia due to, or as a consequence of, metastatic lung cancer.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

14.  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.  

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 and the applicant contended that the FSM’s discharge should be upgraded based on the completion of his tour of duty in Vietnam.  However, many Soldiers were sent to Vietnam, completed their tour, and returned to serve honorably until the expiration of their enlistment.  The FSM was sent to Vietnam, completed his tour, returned and almost immediately went AWOL for a total of 410 days, and then requested a discharge in lieu of a court-martial.  Therefore, the fact that the FSM completed a tour of duty in Vietnam cannot be used as a reason to change a properly issued discharge.  

 2.  The FSM voluntarily requested discharge, acknowledged that he may be discharged under other than honorable conditions, and that he would be furnished an Undesirable Discharge Certificate.  He also acknowledged that he may be ineligible for many or all veterans benefits from the VA.

3.  The FSM’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.
Furthermore, the quality of the FSM’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

5.  The FSM's post-service achievements and conduct are noted.  However, good post service conduct alone is not normally sufficient for upgrading a properly-issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

6.  In view of the foregoing, there is insufficient basis to upgrade the FSM's discharge to honorable or to general under honorable conditions.



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)                                         AR20090007063





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007063



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1