IN THE CASE OF:	

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110023467 


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, in effect, the records of her late husband, a former service member (FSM), be corrected by upgrading his undesirable discharge (UD) to an honorable discharge.

2.  The applicant states she is requesting the upgrade so that she can be approved for a death pension.  Her husband passed away on 18 December 1999.  She and her daughter were receiving Social Security benefits until her daughter turned 18 years old.  Additionally, she had been taking care of her mother until she passed away in August 2011.  She has been looking for employment since her mother died but has been unable to find a job.  At this time, the only income she receives is $41.46 a month from the FSM's retirement.

3.  The applicant provides two DD Forms 214 (Report of Separation from Active Duty), a Certificate of Marriage, and 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 records show he enlisted in the Regular Army on 18 July 1972 and held military occupational specialty 11B (Infantryman).  The highest rank/grade he held while serving on active duty was specialist four (SP4)/E-4.

3.  On 11 December 1972, he departed his unit in an absent without leave (AWOL) status; however, he returned to military control on 5 January 1973.  

4.  His records also show he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), on 29 January 1973, for failure to report to extra duty at the correct time.

5.  He was honorably discharged on 10 December 1974 for the purpose of immediate reenlistment.  His DD Form 214 for this period of service shows he completed 2 years, 3 months, and 27 days of creditable active service.  

6.  He reenlisted, on 11 December 1974, after his commander granted him a waiver for the lost time.  He was assigned to the 3rd Battalion, 47th Infantry, 9th Infantry Division, Fort Lewis, WA. 

7.  On 4 May 1976, he departed his unit at Fort Lewis in an AWOL status and on 3 June 1976 he was dropped from Army rolls as a deserter.  It appears he returned to military control at Fort Bragg, NC, on 18 July 1976.

8.  However, on 26 July 1976, he again departed in an AWOL status and he was again dropped from Army rolls, on 9 August 1976.  He ultimately surrendered to military authorities on 30 August 1976.

9.  His record contains eight DA Forms 4187 (Personnel Action) ranging in date from 6 May to 7 September 1976.  These forms show his duty status as follows: 

* Present for Duty (PDY) - AWOL:  4 May 1976
* AWOL - dropped from rolls (DFR):  3 June 1976
* DFR - PDY:  19 July 1976
* PDY - AWOL:  26 July 1976
* AWOL - DFR:  9 August 1976
* DFR - PDY:  30 August 1976
* PDY - Excess Leave: 3 September 1976
10.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his records contain:  

	a.  Orders Number 59-12, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, NC, on 23 September 1976, reducing him in grade/rank from SP4/E-4 to private (PVT)/E-1.

	b.  A duly-constituted DD Form 214 that shows on 5 October 1976 he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) in lieu of trial by a court-martial with a UD.  This form shows he completed 1 year, 6 months, and 7 days of creditable active military service with 108 days of lost time. 

	c.  A memorandum, dated 3 September 1976, wherein the FSM declined a separate document describing his narrative reason for separation.

11.  There is no evidence in the FSM's records that shows he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

12.  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 the 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 to an individual who was discharged for the good of the service.

13.  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.


14.  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 record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged in lieu of trial by court-martial on 5 October 1976 under the provisions of Army Regulation 635-200, chapter 10, with a UD.

2.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required the FSM to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by 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 provided no evidence that would indicate the contrary.  Further, it is presumed the FSM's discharge accurately reflects his overall record of service during his enlistment.

3.  There is no evidence of record and the applicant has not provided any evidence to show the FSM was not properly and equably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the FSM's rights were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

4.  Based on his overall record of service, the FSM's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the FSM is not entitled to an honorable discharge.

5.  The ABCMR does not upgrade discharges solely for the purpose of making an individual eligible for benefits.  Every case is individually decided based upon its merits.







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)                                         AR20110023467



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ABCMR Record of Proceedings (cont)                                         AR20110023467



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