IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110001851 


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 her late husband's undesirable discharge to an honorable discharge.

2.  The applicant states the reason for discharge was too harsh for the offenses committed by the FSM.  The applicant states the FSM should have been given the opportunity to complete his enlistment.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) for the period ending 30 October 1975.

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 17 October 1973.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 15E (Pershing Missile Crewman).

3.  The FSM's record shows he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 10 July 1974, for disobeying a lawful order from a superior noncommissioned officer, for being absent without leave (AWOL) for the period 2 July 1974 through 3 July 1974, and for absenting himself from his unit from 0700 hours to 1300 hours on 8 July 1974
* 2 October 1974, for leaving his guard post without proper authority
* 26 November 1974, for failing to go at the time prescribed to his appointed place of duty 
* 11 February 1975, for failing to go at the time prescribed to his appointed place of duty
* 14 August 1975, for failing to go at the time prescribed to his appointed place of duty

4.  The evidence of record shows the FSM was AWOL for the period 17-25 June 1975.

5.  The FSM's court-martial charge sheet is not available; however, on 19 September 1975, after consulting with counsel, he submitted a request for 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.

6.  The FSM acknowledged in his request that he understood he could receive an undesirable discharge, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood that may expect to encounter substantial prejudice in civilian life due to the issuance of an undesirable discharge.  He elected not to submit a statement in his own behalf.

7.  On 16 October 1975, the appropriate authority approved the FSM's request for discharge for the good of the service.  He directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  On 30 October 1975, he was discharged accordingly.  His DD Form 214 shows he 

completed 2 years and 5 days of total active service with 9 days of time lost due to being AWOL.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  At the time, an undesirable discharge was normally considered appropriate.

9.  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.

10.  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 FSM’s administrative separation is presumed to have been accomplished in accordance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

3.  The FSM's record shows he received five Article 15s and he had one period of being AWOL.  He completed 2 years and 5 days of his enlistment obligation and he had 9 days of time lost due to being AWOL.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, which are required for the issuance of an honorable or general discharge.

4.  In view of the foregoing, there is no basis for upgrading the FSM's discharge to either honorable or general.

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)                                         AR20110001851



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ABCMR Record of Proceedings (cont)                                         AR20110001851



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