IN THE CASE OF:	  

		BOARD DATE:	    22 July 2010

		DOCKET NUMBER:  AR20100000924 


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 upgrade of the FSM's undesirable discharge.

2.  The applicant states that her deceased husband's record should be adjudicated.  She was told that if he was discharged prior to 1980, his record can be changed.  He left the Army at the time because they had two small children at home and she could not take care of them by herself.  Her husband recently passed and she would like his record corrected so she may get approval for a headstone marker.

3.  The applicant provides a copy of the FSM's Certificate of Death, a copy of the FSM's DD Form 214 (Report of Separation and Record of Service), and a copy of her Marriage Record.

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he enlisted in the Regular Army on 30 September 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).  He was to be reassigned to Fort Campbell, KY.

2.  On 28 March 1975, while still in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on three different occasions.
3.  On 20 April 1975, upon completion of his training, he failed to report to Fort Campbell.  He was reported in an absent without leave (AWOL) status on 21 April 1975 and he was dropped from the rolls (DFR) of the Army on 20 May 1975.  He subsequently returned to military control on 29 May 1975.

4.  On 4 June 1975, he accepted NJP under the provisions of Article 15, UCMJ, for being AWOL from on or about 20 April 1975 to on or about 29 may 1975.

5.  On 18 June 1975, he again departed his unit in an AWOL status and he was again DFR of the Army on 17 July 1975.  He was apprehended by civil authorities on 23 July 1975 in Cincinnati, OH, and he was returned to the military authorities and placed in pre-trial confinement at Fort Knox, KY.

6.  On 29 July 1975, court-martial charges were preferred against the FSM for one specification of being AWOL during the period on or about 18 June 1975 through 23 July 1975.

7.  On 31 July 1975, the FSM consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, the FSM indicated he was making this request of his own free will and he had not been subjected to any coercion and he indicated that he had been advised of the implications that were attached to his request.  He also indicated he understood by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

9.  He submitted a statement in his own behalf in which he stated that he initially liked the Army but later decided he did not want to stay in.  He also stated that 

the money he received was not sufficient for him and his family.  Essentially, the Army did not pay enough and took him away from his family.

10.  On 4 August 1975, the FSM’s commander and intermediate commander recommended approval of the FSM's discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 7 August 1975, the separation authority approved the FSM's request for discharge for the good of the service in accordance with Army Regulation
635-200, chapter 10, and directed that he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 20 August 1975, the FSM was accordingly discharged.  

12.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with issuance of a DD Form 258A (Undesirable Discharge Certificate).  This form further confirms he completed a total of 8 months and 7 days of creditable active military service and he had
74 days of lost time.  

13.  On 23 February 1982, the Army Discharge Review Board (ADRB) denied the FSM's petition for an upgrade of his discharge.

14.  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.  At the time, an undesirable discharge was normally issued.

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 applicant contends that her late husband's discharge should be upgraded.

2.  The FSM's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The FSM voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  The applicant's desire to obtain a headstone marker for the FSM is noted; however, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the FSM's record is in error or unjust.  She did not submit evidence that would satisfy this requirement.

4.  Based on his record of indiscipline, the FSM's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

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)                                         AR20100000924



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)