IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100021196 


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 upgrade of the discharge of her deceased husband, a former service member (FSM), to honorable.

2.  The applicant states the FSM was "eligible for a discharge for unsuitability."  She also states, in effect, he enlisted in the Army under duress, having been given two options:  enlist or go to jail.

3.  The applicant provides:

* a certified abstract of marriage
* a certificate of death
* the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a legal brief supporting the FSM's application for upgrade of his discharge
* a letter from an attorney at the Summit County Legal Aid Society to the attention of the Army Discharge Review Board (ADRB), dated 12 February 1980
* a page from a DD Form 458 (Charge Sheet)
* a DD Form 2067 (Case Report and Directive – Discharge Review Board – Statement of Findings, Conclusions, and Reasons)

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 enlisted in the Regular Army on 13 March 1970 for a period of 3 years.

3.  The record is void of documentation showing he enlisted to avoid a civilian jail sentence.

4.  A DA Form 3286 (Statements for Enlistment) completed at the time of the FSM's enlistment shows he reported having been held by law enforcement authorities for the offense of "runaway" on 19 October 1968 in Part II (Statement of Law Violations and Previous Conditions).  His enlistment records show he did not report any other offenses.

5.  A DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 38 (Record of Assignments) that his conduct and efficiency were rated for eight periods.  He received "poor" and "unsatisfactory" conduct and efficiency ratings for four periods.  He received "excellent," "fair," and "good" ratings for the other four periods.

	b.  item 44 (Time Lost) that he was absent without leave (AWOL) during the following periods in 1970:

* 25 to 31 May
* 9 to 12 July
* 7 to 10 August
* 17 to 25 August
* 28 August to 6 September
* 19 to 20 October
* 27 to 28 November

6.  The record shows he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* being AWOL from on or about 25 May to 1 June 1970
* breaking restriction on or about 26 July 1970
* being AWOL from on or about 17 to 26 August 1970

7.  His DD Form 214 shows in item 30 (Remarks) that he served in Vietnam from 23 March to 31 August 1971.

8.  A DD Form 458 shows that while assigned for duty in Vietnam he was charged with one specification of violating Article 113, UCMJ, by leaving his post before he was regularly relieved on 7 July 1971.

9.  On or about 17 July 1971, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  Prior to submitting his request, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, the effects of his request for discharge, and the rights available to him.

10.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that as the result of such a discharge he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might encounter substantial prejudice in civilian life by reason of an undesirable discharge.

11.  On 20 August 1971, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 1 September 1971, he was discharged accordingly and his service was characterized as under other than honorable conditions.  He completed 1 year, 4 months, and 11 days of total active service with 38 days of lost time.

12.  The FSM's records do not show any significant acts of achievement or valor during his military service.

13.  The record is void of documentation showing his chain of command contemplated or recommended discharging him for unsuitability.

14.  On 21  July 1977, the ADRB reviewed his discharge in response to his claim that he met the criteria for the Department of Defense Special Discharge Review Program (SDRP).  The ADRB found he did not meet the primary or secondary criteria and determined his poor record did not warrant an upgrade of his discharge.  On 22 September 1977, the Office of the Adjutant General informed him the ADRB had determined he was properly discharged.

15.  On 12 December 1978, the Office of the Adjutant General informed him he had the right to request and receive an entirely new review of his case pursuant to Court Order Number 76-0530, dated 23 August 1978.

16.  On or about 31 March 1980, the ADRB reviewed a complaint from the FSM's counsel that its 1977 decision did not meet standards established by the Department of Defense.  On 11 April 1980, the ADRB determined he should receive a new hearing under current standards and informed his counsel he must submit a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) to receive a new hearing.

17.  The record is void of documentation showing the FSM submitted an application to receive a new hearing.

18.  The legal brief provided by the applicant summarizes the FSM's service and contends he was eligible for a discharge for unsuitability and that his enlistment was not valid because he entered the Army to avoid jail.

	a.  The brief contends the FSM should have been declared unsuitable based on his conduct and efficiency ratings and record of NJP.

	b.  The brief further contends the FSM's enlistment was not valid because he had "quite a few conflicts with the law" prior to enlisting and he would have been imprisoned had he faced trial.  In effect, the brief argues he enlisted to avoid jail, meaning he was under duress, which made the contract invalid.

19.  The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."

	a.  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.

	b.  Individuals could have their discharges upgraded if they met any one of the following criteria:  wounded in action, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia, completed alternate service, received an honorable discharge from a previous tour of military service, or completed alternate service or excused from completing alternate service in accordance with Presidential Proclamation 4313 of 16 September 1974.

	c.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area, discharge based on a violent act of misconduct, discharge based on cowardice or misbehavior before the enemy, or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  Chapter 13 of the version in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

21.  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.

22.  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.

23.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of the FSM's discharge to honorable.

2.  The applicant states the FSM was "eligible for a discharge for unsuitability."  At the time, the decision to recommend a Soldier's discharge for unsuitability was a matter for the Soldier's chain of command.  In this case, there is no evidence his chain of command viewed him as unsuitable for military service.  In fact, he received "fair," "good," and "excellent" conduct and efficiency ratings during his service.  Although it's clear he was not a good Soldier during much of his service, the record shows he was capable of being a good Soldier.

3.  The record is void of documentation showing the FSM enlisted to avoid a civilian jail sentence.  Although this may have been the case, the record shows he willingly entered into an enlistment contract with the U.S. Army.

4.  The record does show the FSM 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.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The FSM's record of service shows 38 days of time lost due to AWOL, NJP for three UCMJ violations, and that he was charged with the serious offense of leaving his post while serving in Vietnam.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an honorable or 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 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)                                         AR20100021196



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ABCMR Record of Proceedings (cont)                                         AR20100021196



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