IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100022613 


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 son of a deceased former service member (FSM), requests upgrade of his father's under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states the FSM was involved with his captain's wife.  The captain found out and told him if he did not leave her alone, he (the captain) would kill him.  The FSM feared for his life.  When he went back to his unit, the captain told him to keep his mouth shut or he would shut it for him.

3.  The applicant provides the:

* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* FSM's Certificate of Death
* FSM's Marriage License and Certificate of Marriage

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he enlisted in the Regular Army (RA) on 26 July 1966 for a period of 3 years.  He held military occupational specialty (MOS) 71H (Personnel Specialist).  He served in Vietnam from 2 March 1967 to 26 February 1969.  He was honorably released from active duty on 26 February 1969 as an overseas returnee and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.

2.  He again enlisted in the RA on 7 September 1971 for a period of 3 years.  He held MOS 75C (Personnel Management Specialist).  He followed that with a
4-year reenlistment on 29 May 1974 and a 3-year reenlistment on 3 March 1978. He also served in Germany from 27 September 1972 to 21 March 1979.  He attained the rank/grade of staff sergeant (SSG)/E-6.

3.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the FSM's DD Form 214 for the period ending
7 October 1983 shows the:

* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* National Defense Service Medal
* Vietnam Service Medal with one silver service star and two bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Meritorious Unit Commendation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Army Commendation Medal (1st Oak Leaf Cluster)
* 4 overseas service bars
* Army Good Conduct Medal (4th Award)
* Army Service Ribbon
* NCO (Noncommissioned Officer) Professional Development Ribbon with Numeral 2

4.  On 1 December 1980, he departed his unit in an absent without leave (AWOL) status and on 31 December 1980, he was dropped from the rolls of the Army as a deserter.  He ultimately surrendered to civilian authorities at Fort Dodge, IA, and he returned to military control at Fort Hood, TX, on 17 August 1983.

5.  On 24 August 1983, court-martial charges were preferred against him for one specification of being AWOL from 1 December 1980 to 17 August 1983.

6.  On 24 August 1983, 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 or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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 court-martial.

7.  In his request for discharge the FSM indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He understood that 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 or a discharge under other honorable conditions.  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.  He also elected not to submit a statement in his own behalf.

8.  On 30 August 1983, his immediate and intermediate commanders recommended approval of his discharge with the issuance of and under other than honorable conditions discharge.

9.  On 2 September 1983, the separation authority approved the FSM's request for discharge in accordance with Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to private (PV1)/E-1 prior to the execution of his discharge.  On 7 October 1983, the FSM was discharged accordingly.

10.  The DD Form 214 the FSM was issued at the time shows he was discharged under other than honorable conditions by reason of for the good of the service - in lieu of court-martial.  This form further confirms he completed a total of 11 years, 11 months, and 16 days of total active service with 989 days of time lost.

11.  There is no indication the FSM petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7a, states 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.

14.  Army Regulation 635-200, paragraph 3-7b, states 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 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 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 the rights of the FSM were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  There is no evidence in the FSM's records and the applicant did not submit any substantiating evidence that shows the FSM encountered any threats or violence by his captain at the time, that he addressed such issues with his higher chain of command and/or military police officials or other support channels, or that he used a legitimate approach to resolve those issues.  In addition, it does appear that the applicant had "clean hands."  Had he not become involved with another man's wife he would not have found himself in such a situation.

3.  Based on the FSM's record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, there is no basis for granting the applicant's 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)                                         AR20100022613



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ABCMR Record of Proceedings (cont)                                         AR20100022613



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