IN THE CASE OF:
BOARD DATE: 12 April 2011
DOCKET NUMBER: AR20100020949
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 spouse of a deceased former service member (FSM), requests that her late husband's dishonorable discharge be upgraded to an honorable discharge.
2. The applicant states the FSM had medical conditions that he and she were unaware of which led to him leaving the service.
3. The applicant provides a copy of the FSM's death certificate.
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 into the Army of the United States on 19 January 1967.
3. Nonjudicial punishment was imposed against the FSM on 17 July 1967 for failure to go to his appointed place of duty.
4. On 3 March 1970, the FSM was convicted by a general court-martial of being absent without leave (AWOL) from 10 May 1968 until 19 November 1969 with intent to remain absent permanently. He was sentenced to a dishonorable discharge.
5. On 22 April 1970, the convening authority approved the sentence as adjudged. The U.S. Army Court of Military Review affirmed the findings and sentence on 4 June 1970 and the convening authority ordered the sentence executed.
6. On 5 October 1970, the FSM was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of a duly-approved and affirmed general court-martial conviction. He completed 8 months and 19 days of net active service this period.
7. The DD Form 214 the FSM received shows the following periods of lost time:
* 31 July 1967 until 31 August 1967
* 26 September 1967 until 13 April 1968
* 10 May 1968 until 20 November 1969
* 25 November 1969 until 3 March 1970
* 22 March 1970 until 4 October 1970
8. The applicant provides a copy of the FSM's death certificate that shows he died on 13 April 1999.
9. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11, in effect at the time, established policy and procedures for separating members with a dishonorable or bad conduct discharge. The regulation provided that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial. It further provided the appellate review must be completed and the affirmed sentence ordered duly executed.
11. Army Regulation 635-200, 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.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted and her supporting document has been considered.
2. There is no evidence in the available record and the applicant has not submitted any showing the FSM was suffering from any medical condition at the time of his discharge on 5 October 1970 that would have excused his numerous periods of AWOL.
3. The FSM's records show he had 1,088 days of lost time. He was discharged as a result of a duly-approved and affirmed general court-martial conviction. The FSM's service was not honorable; therefore, the applicant's request should be denied.
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 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) AR20090005994
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ABCMR Record of Proceedings (cont) AR20100020949
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