IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110014831 


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 requests that the second discharge of her late husband, a former service member (FSM), be upgraded.

2.  She states that since his discharge the FSM had become an upstanding member of the community, a great husband for 38 years, and a great father and grandfather.  She feels upgrading his discharge is the last thing she could do for him.  

3.  She adds he died unexpectedly and is greatly missed.  She asks if the FSM’s discharge is upgraded, would she be able to file for his benefits.

4.  The applicant provides:

* Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* A certificate of death

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’s record shows he enlisted in the Regular Army on 22 August 1968 for a period of 3 years.  Upon completion of training, he served in military occupational specialty 11B (Light Weapons Infantryman). 

3.  The applicant provided a DD Form 214 for the period ending 14 May 1969 which shows the FSM was honorably discharged for the purpose of immediate reenlistment.  As such, he reenlisted in the Regular Army on 15 May 1969. 

4.  His record shows the highest grade he attained while serving on active duty was specialist four/E-4.  There are no significant acts or special recognitions in the available record. 

5.  On 13 July 1972, the FSM, before a special court-martial, pled guilty and was found guilty of four specifications of being absent without leave (AWOL) during the period from 15 January to 13 June 1972.

6.  His record contains a Headquarters, U.S. Army Personnel Control Facility, memorandum, dated 21 February 1973, subject:  Determination.  This document shows he went AWOL on two other occasions:

* from 13 to 19 December 1972
* from 26 December 1972 to 10 January 1973

7.  The FSM’s separation packet is not available for review; however, Headquarters, U.S. Army Armor Center and Fort Knox, Special Orders Number 47, dated 8 March 1973, show he was to be separated under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) with the issuance of an Undesirable Discharge Certificate.

8.  Accordingly, on 14 March 1973 he was discharged under the provisions of 
chapter 13 of Army Regulation 635-200 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities. He was issued an Undesirable Discharge Certificate.  He had completed a total of 3 years, 10 months, and 20 days of active service.  He had 248 days of time lost.  

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 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 13-5a(1) of chapter 13, then in effect, provided for discharge of individuals for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  This regulation further provided that an individual separated for unfitness would be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his or her case.

   b.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

12.  The Department of Veterans Affairs (VA) operates under its own laws, rules, policies, and guidelines.  As such, the VA has the discretion of awarding and denying benefits based on these directives. 

DISCUSSION AND CONCLUSIONS:

1.  Although the FSM’s separation packet was not available for review by this Board, in order to be discharged under the provisions of chapter 13 of Army Regulation 635-200, he would have had a record of frequent incidents of a discreditable nature with civil or military authorities.  This regulation further provided that an individual separated for unfitness would normally be furnished an Undesirable Discharge Certificate.  

2.  A review of the FSM’s military service record shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He was tried by special court-martial and found guilty of four specifications of going AWOL.  Subsequent to his court-martial, he went AWOL on two other occasions.  His lost time totaled 248 days.  As a result, his record of service was unsatisfactory.  There is no record or documentary evidence of acts of valor or achievement. 

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process and that the type of discharge and the reason for separation were appropriate.

4.  The FSM’s post-service conduct is noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly-issued discharge.

5.  While the Board offers its condolences to the applicant for her loss, there is no sufficiently mitigating evidence in the FSM’s case to warrant an upgrade of a duly constituted discharge.

6.  Additionally, granting veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for benefits should be addressed to the VA.

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)                                         AR20110014831





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ABCMR Record of Proceedings (cont)                                         AR20110014831



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