IN THE CASE OF:	  

		BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120008599 


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 records of her deceased husband, a former service member (FSM), be corrected by upgrading his undesirable discharge to a general discharge under honorable conditions.

2.  The applicant states the FSM was told at the time of his discharge that it would be upgraded within 2 years; however, it never was.  She states the FSM requested an upgrade of his discharge in February 2003, but it was never completed and he was ill and could not follow up with the action.

3.  The applicant provides copies of the FSM's medical records to show that he was ill before he passed away in 2012, a copy of the FSM's death certificate, and a copy of his DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The FSM was inducted into the Army of the United States in Chicago, Illinois, on 25 March 1969.  He was transferred to Fort Leonard Wood, Missouri, to undergo basic training.  On 21 April and 19 June 1969 nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 13 to 19 April 1969 and 7 to 16 June 1969, respectively.

2.  He was transferred to Fort Polk, Louisiana, to undergo advanced individual training as a supply clerk.  He completed his training and was transferred to Vietnam on 21 September 1969.

3.  On 11 January 1970, NJP was imposed against the FSM for failing to go to his place of duty (convoy to haul ammunition to another landing zone) and speeding on the landing zone.

4.  On 23 February 1970, NJP was imposed against him for being drunk on his sentinel post.

5.  He departed Vietnam on 16 September 1970 for assignment to Fort Stewart, Georgia.

6.  On 18 November 1970, he was AWOL and remained absent in desertion until he was apprehended by civil authorities on 3 February 1976.  He was returned to military control at Fort Leonard Wood where charges were preferred against him for being absent from 18 November 1970 to 2 February 1976.

7.  After consulting with defense counsel on 10 February 1976, 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 (Personnel Separations), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  He elected not to submit a statement in his own behalf but stated he just did not want to be in the Army.

8.  The appropriate authority approved the applicant's request for discharge on 27 February 1976 and directed the issuance of an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged on 27 February 1976 under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year, 8 months, and 4 days of total active service with 1,917 days of lost time due to AWOL.

10.  There is no evidence to show the FSM applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  However, he applied to the ADRB on 10 February 2003 and was informed that he had to apply to this Board.  The FSM passed away on 21 April 2012.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who 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 at any time after court-martial charges are preferred.  Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will 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' 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 at the time.

12.  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 FSM's voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reason for discharge were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, the FSM voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of the FSM's absence and the short period of his service.  The FSM's service simply did not rise to the level of honorable or under honorable conditions.

4.  Additionally, there was no provision for automatically upgrading such discharges then nor is there now.

5.  Accordingly, there appears to be no basis to grant the applicant's request for an upgrade of the FSM's 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 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)                                         AR20120008599



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ABCMR Record of Proceedings (cont)                                         AR20120008599



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