BOARD DATE: 18 May 2010
DOCKET NUMBER: AR20090018122
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 widow of a former service member (FSM), requests the FSMs discharge under other than honorable conditions (UOTHC) be upgraded.
2. The applicant states she does not understand what other than honorable means. Her husband told her that he was honorably discharged.
3. The applicant provides a copy of the FSMs death certificate in support of her application.
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 19 July 1974 for a period of two years.
2. Item 21 (Time Lost) on the FSMs DA Form 2-1 (Personnel Qualification Record Part II) shows he was in an absent without leave (AWOL) status from 28 July 1974 through 1 August 1974 and 11 August 1974 through 20 January 1976 (a total of 533 days). His service record does not contain Article 15s or courts-martial for these periods of AWOL.
3. The FSM was convicted in the Bronx Supreme Court of first degree manslaughter on 11 February 1976. He was sentenced to a minimum of 3 years and a maximum of 9 years confinement at the Elmira Correctional Facility, Elmira, NY.
4. Discharge action was initiated, and the separation authority approved the FSM's discharge under the provisions of Army Regulation 635-206, paragraph 33 (civil conviction) with issuance of a UOTHC Discharge Certificate.
5. The FSM was discharged on 30 December 1977. He completed 2 months and 8 days of creditable active service. He had 1,173 days of lost time due to AWOL and civil confinement.
6. There is no indication that the FSM applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.
7. Army Regulation 635-206 set forth the authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). That regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 members 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 clearly inappropriate.
9. 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 Soldiers separation specifically allows such characterization.
10. Army Regulation 635-200, paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent
entry, homosexual conduct, security reasons, or in lieu of trial by court martial in several circumstances as listed under this paragraph.
DISCUSSION AND CONCLUSIONS:
1. The applicant states she does not understand what other than honorable means and her husband told her that he was honorably discharged.
2. Based on Army Regulation 635-200, a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable, such as for misconduct.
3. The FSMs service record shows he convicted by a civil court of first degree manslaughter and was sentenced to 3 to 9 years of confinement. He was also AWOL for a total of 533 days. As a result, the FSMs service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered his service unsatisfactory.
4. It appears the chain of command determined the FSMs overall military service did not meet the standards for a general under honorable conditions or fully honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as UOTHC.
5. The evidence of record does not show the actions taken in this case were in error or unjust. Therefore, 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.
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