IN THE CASE OF:	  

		BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120019033 


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 an upgrade of the FSM's discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states the FSM was an alcoholic at the time of his discharge and that affected his judgment.  He was very ashamed of his discharge and hid the information from his family.

3.  The applicant provides:

* FSM's death certificate
* four Department of Veterans Affairs Forms 21-4138 (Statement in Support of Claim)
* letter from FSM's oldest child
* obituary guestbook postings
* handwritten note submitted on a 2010 Water Quality Report

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 7 July 1961 for a 3-year term of service.  He was subsequently assigned to Battery A, 2nd Howitzer Battalion, 14th Artillery, as a cannoneer.

2.  His records contain a DD Form 789 (Unit Punishment Record) which shows he accepted nonjudicial punishment (NJP) twice for being absent without leave (AWOL) and once for breaking restriction.

3.  Special Court-Martial Order Number 25, issued by Headquarters, 2nd Howitzer Battalion, 14th Artillery, dated 8 August 1962, shows the FSM pled guilty and he was found guilty of being AWOL on 1 August 1962, willfully disobeying a lawful order on 2 August 1962, and using disrespectful language to his superior noncommissioned officer on 2 August 1962.  On 6 August 1962, he was sentenced to confinement at hard labor for 3 months.  The sentence was approved on 8 August 1962, but the execution thereof was suspended for 3 months.

4.  Special Court-Martial Order Number 26 issued by Headquarters, 2nd Howitzer Battalion, 14th Artillery, dated 16 August 1962, shows the suspension of punishment was vacated and the unexecuted portion of his sentence to confinement at hard labor for 3 months would be duly executed.  He was ordered to be confined to the Southern Area Command Stockade, Nurnberg, Germany.

5.  The FSM's records contain a psychiatric evaluation statement, dated 18 August 1962.  The psychiatrist stated the FSM, an 18-year old, was evaluated as part of a stockade screening program.  He noted as part of the FSM's pertinent history that upon suspension of his sentence and return to duty, the FSM refused to perform guard duty and became drunk.  The FSM attributed his misconduct to his excessive drinking and disagreements with his first sergeant.  The psychiatrist characterized the FSM's condition as a chronic tendency to become overwhelmed by the everyday emotional stresses of military life due to his excessive drinking, impulsivity, and episodes of AWOL.  Past rehabilitative attempts had failed and it was unlikely that further rehabilitative efforts would be successful.  The evaluation revealed no evidence of any mental diseases or defects sufficient to warrant separation through medical channels.  It recommended the FSM's administrative separation for unsuitability due to apathy under the provisions of paragraph 3c of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability).

6.  The FSM's records contain a signed statement by the FSM, dated 22 September 1962, wherein he acknowledged he had been notified that he was being recommended for elimination from the service for unfitness under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  He acknowledged he had been advised he could be given an undesirable discharge as a result of the recommended action.  He further acknowledged he was afforded the opportunity to request counsel.  He waived his right to appear before a board of officers and elected not to submit a statement in his own behalf.

7.  Special Court-Martial Order Number 30 issued by Headquarters, 2nd Howitzer Battalion, 14th Artillery, dated 20 October 1962, shows the vacation of his sentence as ordered in Special Court-Martial Order 26 was further suspended for 1 month.

8.  On 29 October 1962, an endorsement from the Adjutant General directed the FSM's discharge under the provisions of Army Regulation 635-208, paragraph 3a, and the issuance of a General Discharge Certificate.

9.  Special Court-Martial Order Number 31 issued by Headquarters, 2nd Howitzer Battalion, 14th Artillery, dated 30 November 1962, shows the FSM pled not guilty to the following charges:

* willfully damaging a typewriter valued at $30.30 on or about 1 November 1962
* committing an assault upon a noncommissioned officer by striking him on the left jaw and right arm with a mallet on or about 1 November 1962

10.  He was found not guilty of damaging the typewriter and guilty of the amended charge of assault "by striking him on the left jaw with the handle of a mallet."  He was sentenced to confinement at hard labor for 6 months and forfeiture of $25.00 dollars per month for 6 months.  His sentenced was adjudged on 24 November 1962.  On 30 November 1962, the sentence was ordered to be duly executed.

11.  On 11 December 1962, the FSM acknowledged he had been notified that he was being reconsidered for elimination from the service under the provisions of Army Regulation 635-208 for unfitness.  He acknowledged he had been advised he could be given an undesirable discharge as a result of the recommended action.  He further acknowledged he was afforded the opportunity to request counsel.  He waived his right to appear before a board of officers and elected not to submit a statement in his own behalf.

12.  On 14 January 1963, the approving authority stated that in view of the FSM's act of assault subsequent to the initial elimination action, the original action directing a general discharge, dated 29 October 1962, was rescinded and his discharge from the service under provisions of Army Regulation 635-208, paragraph 3a, was thereby directed.  An Undesirable Discharge Certificate would be furnished upon his relief from active duty.

13.  On 6 February 1963, he was discharged under the provisions of Army Regulation 635-208 with a separation program number of 28B, denoting unfitness for frequent involvement in incidents of a discreditable nature with civil or military authorities, and given an undesirable discharge.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 2 months, and 29 days of total active service with 124 days of lost time.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.

14.  A review of the FSM's records 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.

15.  The applicant submits numerous letters of support which contend the FSM had been sober for many years and was a good, hard working man who was always willing to help others.  His eldest child stated that her father was a loyal and honest man who worked hard to support his family.  She contends that in a letter the FSM wrote to the Department of Veteran Affairs, he stated he thought his children would be ashamed of his actions and his true discharge status.  She further contends that although her father was discharged for being AWOL, he lived the majority of his life honorably.

16.  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 the 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 regulation also provided that Soldiers could 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.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 based on his post-service accomplishments.

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

* accepted NJP on three separate occasions
* was convicted by two special courts-martial
* accrued a total of 124 days of lost time
* completed 1 year, 2 months, and 29 days of his 3-year service obligation

3.  The FSM's records also show he was initially processed for elimination for unfitness under Army Regulation 635-208 with the issuance of a General Discharge Certificate.  However, he assaulted a noncommissioned officer prior to his discharge and his elimination proceedings were reconsidered.  The separation authority determined that his misconduct warranted his discharge under other than honorable conditions with the issuance of an Undesirable Discharge Certificate.  The record shows he was provided with an opportunity to consult counsel and have his case heard by a Board of Officer which he declined.  Accordingly, he was discharged on 6 February 1963.

4.  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.

5.  All requirements of law and regulations were met and the rights of the FSM were fully protected throughout the separation process.  The FSM was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The FSM's records contain no evidence of procedural or other errors that would have jeopardized his rights.

6.  In view of the foregoing, the applicant's request should be denied.



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)                                         AR20120019033



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ABCMR Record of Proceedings (cont)                                         AR20120019033



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