IN THE CASE OF:	  

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120016069 


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 daughter of a deceased former service member (FSM), requests reconsideration of her mother's earlier request to upgrade the FSM's undesirable discharge to honorable.

2.  The applicant states:

* the FSM was only 17 years old when he enlisted
* he completed an honorable tour and then reenlisted leaving his wife and son at home
* he served in Vietnam
* he served his country twice
* he made a mistake
* he came in contact with Agent Orange
* he suffered from diabetes and had heart problems

3.  The applicant also states the FSM's discharge should be upgraded to honorable for the following reasons:

* clemency is warranted because it is an injustice for him to suffer the adverse consequences of a bad discharge
* under current standards, he would not have received the type of discharge he did
* his average conduct and efficiency ratings/behavior/and proficiency marks were good
* he received personal awards, decorations, and letters of recommendation
* he had combat service
* his record of promotions showed he was generally a good service member
* there were other acts of personal merit
* he was so close to finishing his tour of duty that it was unfair to give him a bad discharge
* he had a prior honorable discharge
* he was a good citizen after his discharge
* his record of nonjudicial punishments/court-martial convictions/convictions by civil authorities/record of absent without leave (AWOL) indicate only isolated or minor offenses
* his ability to serve was impaired by his youth and immaturity, low aptitude scores and level of education, deprived childhood background, marital, family and child care problems, personal problems, and financial problems

4.  The applicant provides:

* pages from her journal
* an article on the Vietnam war
* FSM's Honorable Discharge Certificate from the U.S. Army Reserve, dated 30 April 1966
* FSM's death certificate
* letters from the FSM's physicians
* service personnel records
* document pertaining to an Agent Orange claim
* her birth certificate
* her parent's marriage license

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110025213, on 12 June 2012.

2.  The applicant's contentions are new arguments that will be considered by the Board.

3.  The FSM was born on 11 September 1942.  He enlisted in the Regular Army (RA) on 23 May 1960 for a period of 3 years.  He completed training and he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  On 10 May 1963, he was honorably released from active duty and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.  He was awarded the Army of Occupation Medal, Armed Forces Expeditionary Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  He enlisted in the RA on 19 March 1968 and he completed training and he held MOS 76W (petroleum storage specialist).  He served in Vietnam from 25 August 1968 to 19 August 1969.

5.  He went AWOL from 1 November 1969 to 18 July 1974.

6.  On 8 August 1974, charges were preferred against him for the AWOL period.

7.  On 12 August 1974, after consulting with counsel, the FSM submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

8.  On 16 August 1974, the separation authority approved the FSM's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

9.  On 4 September 1974, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.  He completed 4 years, 7 months, and 14 days of total active service with 1,720 days of time lost.

10.  There is no evidence the FSM applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.

11.  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.

12.  Army Regulation 635-200, currently in effect, chapter 10, provides that a member who has 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 in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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.

15.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1. The evidence of record does not support the applicant's contention that under current standards the FSM would not have received the type of discharge he did.  The current governing regulation states that an individual separated for the good of the service in lieu of trial by court-martial would normally be furnished a discharge under other than honorable conditions.

2.  The applicant contends the FSM was a good citizen after his discharge.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.
3.  The applicant contends the FSM's ability to serve was impaired by youth and immaturity.  However, age is not a sufficiently mitigating factor.  Although he was 17 years of age when he enlisted, he completed his first enlistment (almost 3 years of service).  In addition, he completed 1 1/2 years of his second enlistment prior to going AWOL.  He was 27 years old when he went AWOL.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.

4.  The applicant contends the FSM's ability to serve was impaired by marital, family, financial, and personal problems.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to going AWOL.

5.  His record of service during his last enlistment included 1,720 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the FSM's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

6.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

7.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

8.  The applicant contends clemency is warranted because it is an injustice for the FSM to suffer the adverse consequences of a bad discharge.  However, the Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the FSM's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

9.  In view of the foregoing, there is no basis for granting the applicant's request.



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 to amend the decision of the ABCMR set forth in Docket Number AR20110025213, dated 12 June 2012.



      ____________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)                                         AR20120016069



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ABCMR Record of Proceedings (cont)                                         AR20120016069



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