IN THE CASE OF:	  

		BOARD DATE:  26 April 2012

		DOCKET NUMBER:  AR20110021452 


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 husband's undesirable discharge.

2.  The applicant states, in effect, President Carter gave amnesty to veterans and the FSM previously filed paperwork to request an upgrade of his discharge in 1974.

3.  The applicant provides the FSM’s 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 enlisted in the Regular Army on 11 July 1967 for a period of 3 years.  He completed training and he was awarded military occupational specialty 11B (light weapons infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.   However, he held the rank/grade of private (PV1)/E-1 at the time of his separation.

3.  Special Court-Martial Order Number 32, issued by Headquarters, Special Troops, Fort Campbell, KY, dated 21 January 1969, shows the FSM pled guilty and he was found guilty of being absent without leave (AWOL) from
11 September to 23 October 1968 and from 6 November to 19 December 1968.

4.  On 17 May 1969, charges were preferred against the FSM for being AWOL from 24 March to 29 April 1969.

5.  On 5 June 1969, the FSM consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other honorable conditions, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, the FSM voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the FSM indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 27 June 1969, the separation authority approved the FSM's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with an Undesirable Discharge Certificate.

8.  On 3 July 1969, the FSM was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed 1 year, 6 months, and 26 days of total active service with 178 days of time lost.


9.  On 29 December 1976, after careful consideration of the FSM's military records and all other available evidence the Army Discharge Review Board (ADRB) determined he was properly discharged and denied his request.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service. 

	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.

11.  The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who 


returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria:

* wounded in action
* received a military decoration other than a service medal
* successfully completed an assignment in Southeast Asia
* completed alternate service
* received an honorable discharge from a previous tour of military service
* completed alternate service or excused from completing alternate service in accordance with Presidential Proclamation 4313 (PP 4313) of
16 September 1974

Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.

12.  PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status.  These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge.  The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of her deceased husband's undesirable discharge has been carefully considered; however, there is an insufficient evidentiary basis to support this request.

2.  The FSM's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He voluntarily, willingly, and in writing requested discharge from the Army 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.  Further, the FSM's discharge accurately reflects his overall record of service.

3.  The FSM's record reveals he was AWOL for 178 days.  Based on this record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the FSM is not entitled to an honorable or a general discharge.

4.  Regarding President Carter's amnesty program under the SDRP, the FSM was not eligible for consideration because he did not meet any of the established criteria.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110021452



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ABCMR Record of Proceedings (cont)                                         AR20110021452



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