IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120011684 


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 former service member (FSM), requests upgrade of the FSM's undesirable discharge.

2.  The applicant states she believes the record is unjust because the FSM went absent without leave (AWOL) to be with her at the birth of their son.  She states the FSM was young and very elated about becoming a father.  She adds she and the FSM were married for 50 years, the FSM died on 10 May 2012, and she cannot afford a marker for his gravesite.

3.  The applicant provides a copy of the FSM's DA Form 26 (Record of Court-Marital Conviction), discharge documents, and Certificate of Death.

CONSIDERATION OF EVIDENCE:

1.  The FSM was inducted into the Army of the United States on 7 November 1960.  He was honorably released from active duty on 29 October 1962 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  The DD form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he:

	a.  was awarded military occupational specialty 131 (Armor Crewman) and that he attained the rank/grade of specialist four (SP4)/E-4 on 12 September 1962; and

	b.  completed 1 year, 11 months, and 23 days of net active service that included 1 year, 7 months, and 1 day of foreign service in the U.S. Army Europe.

2.  On 15 November 1963, the FSM enlisted in the Regular Army (RA) for a period of 3 years.  At the time of this enlistment he was 20 years, 11 months, and 4 days of age.  He was subsequently assigned to Company A, 5th Battalion,
33rd Armor, Fort Knox, KY.

3.  Special Court-Martial Order Number 551, issued by Headquarters, U.S. Army Armor Center, Fort Knox, dated 15 May 1964, shows the FSM was tried by a special court-martial.

	a.  He pled guilty and he was found guilty of being AWOL from 26 February to 21 April 1964.

	b.  His sentence was adjudged on 12 May 1964.  He was sentenced to reduction to private (PV1)/E-1 and confinement at hard labor for 3 months.  The sentence was approved on 15 May 1964.

4.  Special Court-Martial Order Number 843, issued by the same headquarters, dated 23 June 1965, shows the FSM was tried by a special court-martial.

	a.  He pled guilty and he was found guilty of being AWOL from 11 August 1964 to 16 May 1965.

	b.  His sentence was adjudged on 15 June 1965.  He was sentenced to a forfeiture of $45.00 pay per month for 6 months and confinement at hard labor for 6 months.  The sentence was approved on 23 June 1965.

5.  A review of the FSM's record failed to reveal a copy of his separation packet.

6.  The FSM's DD Form 214 for the period ending 8 July 1965 shows he was discharged under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) with Separation Program Number (SPN) 28B for unfitness based on frequent involvement in incidents of a discreditable nature with authorities.  His service was characterized as under conditions other than honorable with the issuance of a DD Form 258A (Undesirable Discharge Certificate).  He completed 6 months and 29 days of net active service this period with 389 days of lost time.

7.  A review of the FSM's military personnel record failed to reveal any evidence that the FSM applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.
8.  Army Regulation 635-208, in effect at the time of the applicant's discharge from active duty, provided procedures and guidance for eliminating enlisted personnel having undesirable habits and traits of character.  An individual was subject to separation under the provisions of this regulation when it was determined that an individual's military record was characterized by frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking.  This Army regulation also provides that Soldiers may be issued an Honorable or General Discharge Certificate by the separation authority; however, a Soldier discharged for unfitness was normally furnished an Undesirable Discharge Certificate.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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 contends the FSM's undesirable discharge should be upgraded because he was young and immature when he went AWOL to be with her at the birth to their son.

2.  The FSM was inducted and he satisfactorily completed training, he was promoted to SP4/E-4, he completed an overseas tour of duty, and he was honorably released from active duty on 29 October 1962 upon completion of his initial period of active duty.  He then enlisted in the RA on 15 November 1963 for 3 years.  At the time of his first AWOL offense he was 21 years, 2 months, and 15 years of age.  As such, the applicant's contention that the FSM was immature when he went AWOL to be at the birth to their son is not supported by the evidence of record.

3.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and 


regulations unless the applicant can provide evidence to overcome that presumption; however, the applicant has not provided any evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge directed appears to have been appropriate.

4.  The evidence of record shows that during the period of service under review the FSM:

* was convicted by two special courts-martial
* had a total of 389 days of time lost
* completed less than 7 months of his 3-year service obligation

5.  The FSM's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  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)                                         AR20120011684



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ABCMR Record of Proceedings (cont)                                         AR20120011684



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