IN THE CASE OF:	  

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090016217 


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 her husband's 1971 discharge under other than honorable conditions be upgraded.

2.  The applicant says she would like to obtain burial benefits for her husband, a deceased former service member (FSM).

3.  The applicant provides her husband's death certificate and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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's official military file was reconstructed after returning from absence without leave (AWOL) in 1971.  It shows he was inducted into the Army of the United States and entered military service on 17 February 1970.

3.  The FSM received an Article 15 under the Uniform Code of Military Justice for being AWOL between 10 and 11 June 1970 at Fort Ord, California.  He was undergoing infantry training at the time.

4.  In September 1971 the FSM was convicted by a summary court-martial for AWOL between 12 August 1970 and 9 September 1970.  He was awaiting onward movement at Fort Lewis, Washington, at the time.  His punishment included:

* confinement at hard labor for 30 days
* forfeiture of $88.00
* reduction from pay grade E-2 to E-1

5.  His exact days of service in Vietnam are unknown.  However, in March 1971 he received an Army Commendation Medal for meritorious service during the period 1 October 1970 to 28 February 1971.  His award order indicates his pay grade at the time he received the award was E-3.

6.  After returning to the United States, the FSM was assigned to Fort Riley, Kansas.  He departed AWOL on 2 July 1971, and on 2 August 1971 the Army dropped him from its rolls.

7.  The FSM returned to military control on 6 October 1971.  On 12 October 1971 he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of being tried by court-martial.  He acknowledged he understood he could receive an undesirable discharge as a result.  He also indicated he understood such a discharge could result in the denial of veteran benefits under State and Federal laws.

8.  The appropriate authority approved the FSM's request and on 8 November 1971 he was discharged.  He received an undesirable discharge certificate and his service was characterized as under other than honorable conditions.  He completed 11 months and 21 days of creditable service but had more than 400 days of lost time due to AWOL.

9.  The FSM's record doesn't contain any evidence he applied to the Army Discharge Review Board to have his discharge upgraded.

10.  Army Regulation 635-200 sets forth the basic authority for 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 trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 or is otherwise so meritorious that any other characterization would be inappropriate.

12.  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's discharge under other than honorable conditions was appropriate considering the basis for the separation.  His records show he requested discharge for the good of the service in lieu of trial by court-martial.  There is no evidence indicating his separation was not accomplished in compliance with regulatory guidance and no indication of any procedural errors that would have jeopardized his rights.

2.  The applicant's desire to obtain burial benefits for her husband is understandable.  However, her desire for such benefits is not sufficiently mitigating to justify upgrading the former service member's discharge.

3.  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.



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)                                         AR20090016217



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ABCMR Record of Proceedings (cont)                                         AR20090016217



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