IN THE CASE OF:	  

		BOARD DATE:	  31 November 2010

		DOCKET NUMBER:  AR20100014844 


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 undesirable discharge of her deceased husband, a former service member (FSM), be upgraded to honorable. 

2.  The applicant states that her husband’s mother needed him to be at home to help with his eight siblings after she became ill.  Her husband was a good man and learned so much from the Army.  He has passed away and she is left with nothing due to his illness.

3.  The applicant provides the following in support of her request:

* A certified copy of the FSM’s death certificate
* A copy of the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* A copy of a National Archives (NA) Form 13046 (Response to Request for Separation Documents/Information) 

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 was inducted in the Army, on 16 May 1968.  After completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 70A (Clerk).

3.  A copy of his DA Form 20 (Enlisted Qualification Record) shows he served 
23 months in the Republic of Korea during the period 31 May 1969 through
8 May 1971.  He was honorably discharged on 15 December 1969 for the purpose of enlistment, and on 16 December 1969 he enlisted for a period of       4 years.  He was promoted to the rank of sergeant on 18 March 1971.

4.  On 8 June 1971, he was reassigned to Fort McClellen, AL to attend training for MOS 72B (Communications Specialist).  On 16 December 1971, he completed the required training and was awarded MOS 72B.  

5.  He was reassigned to the 72nd Aviation Company (Air Traffic Control), Fort Rucker, AL on 4 January 1972 where he served as a communications center supervisor.   

6.  His records show he was absent without leave (AWOL) on three separate occasions during the period 7 February and 6 June 1972 and was confined by civil authorities during the period 7 June through 19 July 1972.  

7.  On 10 August 1972, he was convicted, pursuant to his plea, by a special court-martial at Fort Rucker of being AWOL from 5 June and 7 June 1972.  He was sentenced to be reduced to the grade of private E-2 and to forfeit $60.00 pay for one month.  The sentence was approved and ordered executed on 23 August 1972.

8.  On 17 August 1972, the company commander initiated separation action on the FSM under the provisions of Army Regulation 635-212 (Discharge-Unfitness and Unsuitability), specifically for dishonorably failing to pay incurred debts, failure to maintain funds for payment of checks, intentionally making false statements pertaining to his financial status to his superiors, and forging a request for pay action.

9.  On 18 September 1972, the FSM was notified by his commander that he had the option to appear before a board of officers to determine whether he should be discharged for unfitness under the provisions of paragraph 6 of Army Regulation 635-212.  He was also advised the he could exercise the right to request appointment of military counsel, submit a statement on his behalf, or personally appear before a board of officers.

10.  The FSM consulted with the Defense Counsel at Fort Rucker, AL and was advised of his rights.  He requested consideration of his case by a board of officers, requested a personal appearance before the board, and requested representation by appointed counsel.  He elected not to submit any statements on his own behalf.  

11.  The FSM also indicated that he was aware that as a result of the issuance of an undesirable discharge that he may be ineligible for any or all benefits as a veteran under both Federal and state laws and that he may expect to encounter substantial prejudice in civilian life based on that undesirable discharge.

12.  A DD Form 458 (Charge Sheet), dated 4 October 1972, shows charges were preferred against the FSM on 29 September 1972 for intent to defraud the government by forging a request for pay action.  

13.  On 20 October 1972, the appropriate authority approved the FSM's discharge under the provisions of Army Regulation 635-212 and directed he be issued an Undesirable Discharge Certificate.  

14.  Accordingly, he was discharged under other than honorable conditions on 
25 October 1972, under the provisions of Army Regulation 635-212 by reason of unfitness with an undesirable discharge.  He completed a total of 4 years and      4 months of creditable active service with 50 days of lost time due to AWOL and civil confinement.  He was awarded the National Defense Service Medal and the Armed Forces Expeditionary Medal.

15.  There is no evidence in the available records to show that the FSM ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 

16.  Army Regulation 635-212 provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities or an established pattern showing dishonorable failure to pay just debts, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort was unlikely to succeed.

17.  Army Regulation 635-200 (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 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 clearly inappropriate.  

18.  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.  The applicant contends her deceased husband’s undesirable discharge should be upgraded to honorable.  She contends her husband was a good man and learned a lot from the Army. Her contentions were carefully considered; however, they are not sufficiently mitigating to warrant upgrade of his discharge. 

2.  The FSM’s records show that he was convicted by a special court-martial of going AWOL.  He was also charged with dishonorably failing to pay incurred debts, failure to maintain funds for payment of checks, intentionally making false statements pertaining to his financial status to his superiors, and forgery of a request for pay action.  Based on these facts, the FSM’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general discharge.

3.  The FSM's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

4.  In view of the foregoing, there is no basis to grant the 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)                                         AR20100014844





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ABCMR Record of Proceedings (cont)                                         AR20100014844



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