IN THE CASE OF:	

		BOARD DATE:	02 March 2010  

		DOCKET NUMBER:  AR20090016040 


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 widow of a deceased former service member (FSM), requests, in effect, upgrade of her husband's undesirable discharge.

2.  The applicant states, in effect, she was not aware of the type of discharge the FSM received from the U.S. Army until after he died.

3.  The applicant provides, in support of her application, copies of their State of Louisiana Certificate of Marriage, the FSM's DD Form 214 (Report of Separation from Active Duty), and the FSM's State of Louisiana Certificate of Death.

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.  The FSM enlisted in the Regular Army (RA) on 5 September 1972 for a period of 3 years.  Upon completion of training he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).

3.  On 10 September 1973, the FSM received nonjudicial punishment under the provisions of Article15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 14 August 1973 to 3 September 1973.  His punishment consisted of a forfeiture of $50.00 per month for one month.

4.  On 28 December 1973, charges were preferred against the FSM for being AWOL from 8 October 1973 to 17 December 1973.

5.  On 28 December 1973, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The FSM's request for discharge states he had not been subject to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), that he may be deprived of his rights and benefits as a veteran under both Federal and state law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  He indicated with a checkmark, "I do not wish to submit a handwritten statement in my own words concerning my reasons for going AWOL and why I desire a discharge."

6.  The immediate and intermediate commanders recommended approval of the FSM's request for discharge and that he be issued an Undesirable Discharge Certificate.

7.  On 16 January 1974, the separation authority approved the FSM's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The commander also directed the FSM be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

8.  The FSM's DD Form 214 shows he was discharged on 22 January 1974 in accordance with the provisions of Army Regulation 635-200, chapter 10, with service characterized as under other than honorable conditions.  At the time he 

had completed 1 year, 1 month, and 20 days of net active service this period and he had 90 days of time lost due to AWOL.

9.  There is no evidence the FSM applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

12.  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.

13.  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 requests that the FSM's undesirable discharge be upgraded.

2.  The FSM's 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 
voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the FSM were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the type of discharge and characterization of service directed were appropriate.

3.  The evidence of record shows that the FSM was AWOL for a total of 90 days (i.e., 3 months) during the period of service under review.  In addition, the evidence of record shows the FSM completed less than 14 months of his 3-year enlistment commitment.  Thus, the evidence of record clearly shows that the FSM's record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and the FSM is not entitled to an honorable discharge.  Moreover, the evidence of record shows that the FSM's overall quality of service during the period of service under review was not satisfactory and the FSM is not entitled to an under honorable conditions (general) discharge.  In view of the foregoing, the applicant's contention is not sufficiently mitigating to warrant relief.

4.  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 record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the above, there is no basis for granting the applicant's requested relief.

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)                                         AR20090016040



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ABCMR Record of Proceedings (cont)                                         AR20090016040



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