IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110006391 


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, on behalf of her deceased spouse (a former service member (FSM)), requests his under other than honorable conditions discharge for the period ending 13 December 1973 be upgraded to a general under honorable conditions discharge.  
 
2.  The applicant states, in effect, after receiving an under other than honorable conditions discharge the FSM enlisted in the U.S. Army Reserve in 1977 and remained on active duty until 1980.  She states the FSM was discharged in 1973 with a reentry eligibility code of 4 and should not have been able to enlist in 1977; however, he was allowed to enlist and was later honorably discharged.  

3.  The applicant provides:

* a self-authored statement
* page 3 and 4 of a DD Form 4 (Enlistment or Reenlistment Agreement)
* a DA Form 2-1 (Personnel Qualification Record)
* a copy of the FSM’s military identification card
* FDRS Form 8-12 (Certificate of Completion)
* Certificate of Death
* a photograph





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 6 May 1972.  He completed basic  combat and advanced individual training and he was awarded military occupational specialty 94B (Cook).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, he held the rank/grade of private (PVT)/E-1 at the time of separation.

3.  The FSM received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 27 June 1972 for leaving his appointed place of duty on 10 June 1972 and for failing to go to his appointed place of duty on 18 June 1972.  He received further NJP on 25 July 1972 for breaking restriction on 1 July 1972.

4.  The FSM’s records show he received a special court-martial conviction which was adjudicated on 21 March 1973 and approved on 24 April 1973 for being absent without leave for the period 2 January 1973 through 22 February 1973.  The resulting sentence was a reduction to private/E-1, to be confined at hard labor for 1 month; and to forfeit $75.00 per month for 2 months, suspended for     6 months.

5.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) which shows he was discharged on 13 December 1973 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, with a character of service of under other than honorable conditions, reentry code 4.  He completed a total of 1 year, 1 month, and 6 days of creditable active service with 182 days time lost.

6.  On 5 July 1977, the FSM enlisted in the Regular Army.  Item 26 (Military Service) of his DD Form 1966/2 (Title) shows he indicated that he had no prior military service.

7.  On 13 October 1977, the FSM was notified of initiation of separation action under the provisions of Army Regulation 635-200, chapter 14 for fraudulent entry.  The FSM consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  

8.  On 10 November 1977, the FSM was discharged under Army Regulation   635-200, chapter 14, with an honorable discharge.  The DD Form 214 he was issued shows he was released from military control.  He completed 4 months and 6 days of creditable active military service during this period.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 an individual who was discharged for the good of the Service. 

11.  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 request, on behalf of her deceased spouse (a FSM), to upgrade his under other than honorable conditions discharge for the period ending 13 December 1973 to a general under honorable conditions discharge has been carefully considered and found to be without merit.  

2.  The FSM's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  His record contains a properly-constituted DD Form 214 which shows he was discharged on 13 December 1973, under the provisions of chapter 10 of Army Regulation     635-200 in lieu of trial by court-martial.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the FSM to have voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the FSM were fully protected throughout the separation process.  The applicant has provided no information which would indicate the contrary.  Further, the FSM's discharge accurately reflects his overall record of service.

4.  Although the FSM was allowed to enlist in 1977 evidence clearly shows he failed to disclose his prior service.  As a result, on 10 November 1977, the FSM was discharged under Army Regulation 635-200, chapter 14, for fraudulent enlistment.  

5.  The FSM's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ.  Based on his record of indiscipline, his misconduct rendered his service unsatisfactory.  There is no basis for upgrading his 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 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)                                         AR20110006391



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ABCMR Record of Proceedings (cont)                                         AR20110006391



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