IN THE CASE OF:
BOARD DATE: 16 November 2010
DOCKET NUMBER: AR20100014494
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 that the records of his deceased brother, a former service member (FSM), be corrected by upgrading his discharge under other than honorable conditions to an honorable discharge.
2. The applicant states the FSM served honorably and his discharge should reflect his service. He states the FSM served his time for his civil conviction and he attempted to correct this injustice before his death but he was unable to complete the process. The applicant continues by stating he desires to have the FSMs discharge upgraded so that he can obtain a grave marker (headstone) for the FSM so that the FSM will not be in an unmarked grave.
3. The applicant provides:
* A copy of the FSMs DD Forms 214 (Certificate of Release or Discharge from Active Duty).
* A copy of the FSMs death certificate
* A copy of the applicants birth certificate
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 7 August 1972. He completed his training as a light weapons infantryman and he remained on active duty through a series of continuous reenlistments. He served in Germany on three occasions and was promoted to the pay grade of E-6 on 14 July 1979.
2. The FSMs official records show he was confined by civil authorities from
18 February to 19 February 1983.
3. On 15 March 1983, he was again confined by civil authorities and on 7 June 1983 he received a letter of reprimand for his 19 May 1983 conviction for driving while intoxicated on 18 February 1983.
4. The facts and circumstances surrounding the FSMs administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in St. Louis, Missouri in 1988. However, his records do contain a duly-authenticated DD Form 214 which shows he was discharged under other than honorable conditions on 21 November 1983 under the provisions of Army Regulation 635-200, chapter 14, due to conviction by civil authorities. He had served 10 years, 6 months, and 4 days of total active service and he had 254 days of lost time due to being in civil confinement.
5. There is no evidence in the available records to show the FSM ever applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
6. The FSM died on 23 August 2009 at the age of 55.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and procedures for separating personnel for misconduct. Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities. A discharge under other than honorable conditions was then and still is normally considered appropriate.
8. Army Regulation 635-200, paragraph 3-7a, states 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
9. Army Regulation 635-200, paragraph 3-7b, states 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.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the FSM's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
2. Accordingly, the characterization of his service appears to be appropriate given the circumstances of his case.
3. The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when considering the basis for the FSMs 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.
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