IN THE CASE OF:
BOARD DATE: 8 December 2011
DOCKET NUMBER: AR20110010256
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 sister of a deceased former service member (FSM), requests, in effect, that the FSM's discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.
2. The applicant states:
* the reason for the FSM's discharge was for the good of the service
* both of the FSM's parents were deceased and this placed a lot of stress on him
* the FSM still served as a good serviceman
3. The applicant provides:
* the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* the FSM's death certificate
* her petition for appointment of guardianship and conservatorship of an incompetent person
* her birth certificate
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 21 August 1980 in pay grade E-1. He was promoted through the ranks to specialist (E-4) effective 1 September 1982.
3. The FSM accepted nonjudicial punishment (NJP) on 29 April 1983 for failing to go to his appointed place of duty.
4. The FSM's charge sheet is not on file. The available records show he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, on 14 October 1983 after consulting with counsel.
5. The appropriate authority approved the FSM's request for discharge on 31 October 1983. Accordingly, the FSM was discharged on 18 November 1983 with a UOTHC character of service.
6. The FSM's DD Form 214 shows he completed 3 years and 4 days of net active service this period with lost time from:
* 21 January through 13 February 1983
* 6 July through 6 August 1983
* 7 August through 6 September 1983
7. The available evidence does not show the FSM ever applied to the Army Discharge Review Board for an upgrade of his discharge.
8. The applicant submits a copy of the FSM's death certificate showing he died from chronic alcoholism on 28 July 2010. She also submits a petition for appointment of guardianship and conservatorship of an incompetent person, dated 26 July 2010, showing she was granted guardianship of the FSM.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 10 provides 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.
b. 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.
c. 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 contentions have been noted and her supporting documents have been considered.
2. However, there is no evidence in the available records showing the FSM was under any unmanageable stress while he was in the Army. The available records show he had NJP imposed against him for failing to go to his appointed place of duty and he accrued three periods of lost time.
3. The FSM submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. It appears the type of discharge he received appropriately reflects his overall record of service. In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.
4. In view of the foregoing, the applicant's request should be denied.
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) AR20110010256
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ABCMR Record of Proceedings (cont) AR20110010256
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