BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100024370 


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 widow of a deceased former service member (FSM), requests upgrade of his under other than honorable conditions discharge.

2.  The applicant states she would like the FSM’s discharge upgraded so she can receive Department of Veterans Affairs (VA) benefits which she feels she deserves.  She claims her husband was young when he was court-martialed.  He grew from that and he became a wonderful husband and provider.

3.  The applicant provides:

* the FSM’s Certificate of Death
* the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a Congressional inquiry packet

CONSIDERATION OF EVIDENCE:

1.  The FSM’s record shows he enlisted in the Regular Army (RA) on
18 February 1977 at 19 years of age.  He successfully completed basic combat training at Fort Dix, NJ and advanced individual training (AIT) at Fort Benning, GA.  Upon completion of AIT on 2 June 1977, he was awarded military occupational specialty (MOS) 11B (Infantryman).  


2.  On 22 August 1979, at 22 years of age, the FSM reenlisted in the RA for a period of 6 years.  His record shows he was advanced to the rank/grade of specialist four (SP4)/E-4 on 1 July 1981, and that this is the highest rank/grade he attained while serving on active duty.  

3.  The record shows the FSM earned the Army Service Ribbon and the Overseas Service Ribbon during his active duty tenure.  His record documents no acts of valor or significant achievement.  

4.  The FSM's record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
10 December 1979, for behaving with disrespect toward a commissioned officer.  His punishment for this offense included a reduction to private (PV2)/E-2.

5.  Item 21 (Time Lost) of the FSM's DA Form 2-1 (Personnel Qualification Record) shows he accrued 1,814 days of time lost during four separate periods of being absent without leave (AWOL) and one period of confinement between 15 December 1977 and 20 January 1988.

6.  On 10 July 1980, a special court-martial (SPCM) convicted the applicant of two specifications of violating Article 86 of the UCMJ by being AWOL from on or about 17 March through on or about 26 April 1980 and from on or about 11 May through on or about 19 May 1980.  The resulting sentence was reduction to private (PV1)/E-1 and confinement at hard labor for 70 days.  

7.  On 27 April 1983, the FSM departed AWOL from his unit in Germany.  He was dropped from the rolls (DFR) of his organization on 27 May 1983 and he remained in a DFR status until returning to military control on 21 January 1988.  A DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the FSM for violating Article 86 of the UCMJ for this AWOL offense.

8.  On 2 March 1988, the FSM consulted with legal counsel and he was advised of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  He was also informed of the possible effects of a UOTHC discharge and of the rights and procedures available to him. 

9.  After receiving legal counsel, the FSM voluntarily 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 trial by court-martial.  In his request for discharge, the FSM acknowledged that by submitting 


the request for discharge, he was admitting he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

10.  On 23 March 1988, the separation authority approved the FSM’s request for discharge and directed the issuance of an under other than honorable conditions discharge.  On 1 April 1988, the FSM was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 3 years, 9 months, and 22 days of creditable active service with 1,814 days of time lost due to AWOL and confinement.

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

12.  On 1 March 2010, the FSM died.

13.  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.

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM’s discharge should be upgraded because he was a young man at the time and later became a wonderful husband and provider has been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.  

2.  The record shows the FSM first enlisted at age 19 and he successfully completed training.  It further shows he reenlisted at age 22 and he was advanced to SP4/E-4 prior to committing the offense that ultimately led to his discharge.  This clearly shows the FSM had the maturity and ability to serve successfully had he chosen to do so.  Further, eligibility for benefits is not a basis for upgrading a discharge.  

3.  The evidence of record confirms the FSM was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the FSM voluntarily requested discharge 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.

4.  The under other than honorable conditions discharge received by the FSM was normal and appropriate under the regulatory guidance.  The FSM's record documents no acts of valor or significant achievement and does not support the issue of an honorable or general discharge by the separation authority at the time of his discharge, nor does it support an upgrade of his discharge at this time.  As a result, the FSM's overall record of service is not sufficiently meritorious to support granting the requested relief.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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)                                         AR20100024370



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ABCMR Record of Proceedings (cont)                                         AR20100024370



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