IN THE CASE OF:	  

		BOARD DATE: 	       3 November 2009

		DOCKET NUMBER:  AR20090009295 


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, as the mother of a deceased former service member (FSM), requests that her late son's discharge under other than honorable conditions be upgraded and that his rank be restored to E-3/private first class.  

2.  The applicant states, in effect, that her son was healthy and crime free before he joined the Army.  She indicates that her son was assigned duty under the supervision of a sergeant who was involved in illegal activities and that her son was charged with gross theft of military property.  He was told to plead guilty or receive 10 years in prison.  He served 7 months in prison, but his release from prison was delayed because of what happened there.  He came home with a complete mental breakdown, due to the trauma that he experienced in prison.  He received Social Security disability and he was deprived of the quality of life we take for granted. 

3.  The applicant provides the FSM's death certificate; Department of Veterans Affairs documentation; service personnel records; the FSM's general court-martial; discharge proceedings; service medical records; and a copy of his DD Form 214 (Report of Separation from Active Duty) in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 19 January 1976 for a period of 
3 years.  He successfully completed basic combat training and basic airborne training in military occupational specialty 63F (recovery specialist).  He attained the rank of private first class effective 1 March 1977.
2.  On 1 April 1977, charges were preferred against the FSM for seven specifications of unlawful entry with intent to commit larceny and five specifications of larceny.  Trial by general court-martial was recommended.  

3.  On 21 June 1977, in accordance with his pleas, the FSM was convicted by a general court-martial of seven specifications of unlawful entry with intent to commit larceny and five specifications of larceny.  He was sentenced to be discharged from the service with a bad conduct discharge, to be confined at hard labor for 7 months, to forfeit all pay and allowances, and to be reduced to E-1.  On 19 July 1977, the convening authority approved the sentence.  

4.  On 22 December 1977, the FSM underwent a separation physical examination and was found qualified for release from confinement with a physical profile of 111111.  He reported that his health was "Good" in item 8 (Statement of Examinee's Present Health and Medications Currently Used) on his Standard Form 93 (Report of Medical History). 

5.  The FSM was released from military confinement on 22 December 1977.

6.  On 23 December 1977, the unexecuted portion of the FSM's sentence to a forfeiture of pay and allowances was remitted and the FSM, having served the period of confinement adjudged on 21 June 1977, was restored to duty pending completion of appellate review.    

7.  On 19 April 1978, the FSM consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

8.  On 25 April 1978, the separation authority approved the FSM's request for discharge and directed that he be furnished a discharge under other than honorable conditions and that he be reduced to the lowest enlisted grade.  

9.  Accordingly, the FSM was discharged under other than honorable conditions on 5 May 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 1 year, 9 months, and 15 days of creditable active service with 182 days of lost time

10.  There is no medical evidence of record that shows the FSM was diagnosed with any mental condition.  

11.  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.    

12.  The FSM died on 22 September 2008.

13.  Army Regulation 635-200 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  Paragraph 10-1c of this regulation states that the general court-martial convening authority may approve the Soldier's request for discharge for the good of the service after the Soldier has been tried.

14.  Paragraph 10-1 (Reductions) of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states, in pertinent part, that when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.

15.  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.  

16.  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.

17.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, there is no medical evidence of record that shows the FSM had any mental condition prior to his release from military confinement on 22 December 1977.  He underwent a separation physical examination on 22 December 1977 and was found qualified for release from confinement with a physical profile of 111111.  In addition, he reported that his health was "Good." 

2.  The FSM’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The FSM’s record of service included serious general court-martial offenses.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the FSM's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

5.  Since the separation authority directed the issuance of a discharge under other than honorable conditions, in accordance with the governing regulation the FSM was reduced to the lowest enlisted rank.  Therefore, there is no basis for granting the applicant’s request to restore the FSM's rank to E-3. 



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)                                         AR20090009295



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ABCMR Record of Proceedings (cont)                                         AR20090009295



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