IN THE CASE OF:	  

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130004687 


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 an upgrade of the characterization of the service of her deceased husband, a former service member (FSM), from under other than honorable conditions to general. 

2.  The applicant states:

* the FSM was a good and a proud man who loved his country and excelled in everything he did
* he suffered from depression after having been subjected to advances from an African-American Soldier 
* he was raped and thrown in the stockade while trying to escape this unforgivable act
* the FSM believed in and cared for veterans but he can't get a tombstone without the characterization of service upgraded

3.  The applicant provides:

* 1961 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Letter from a funeral services office
* FSM's certificate of death
* Letter from the Army Review Boards Agency


CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he enlisted in the Regular Army for 3 years on 26 February 1960 at 17 years of age.  He completed basic combat training at Fort Hood, TX, and advanced individual training at Fort Rucker, AL.  He was awarded and held military occupational specialty 111.10 (Light Weapons Infantryman). 

2.  On 29 July 1960, he was reassigned to Fort Benning, GA.  He was assigned to Company D, 2nd Battle Group, 23rd Infantry Regiment.  

3.  On 15 August 1960, he departed his unit in an absent without leave (AWOL) status.  However, he returned to military control on 22 August 1960.  

4.  On 23 September 1960, he again departed his unit in an AWOL status and he was subsequently dropped from the Army rolls as a deserter.  He was apprehended on 29 September 1960 and placed in confinement at Fort Sheridan, IL, on 11 October 1960.

5.  On 17 January 1961, the FSM rendered a statement to the criminal investigators of the U.S. Army that he had committed sodomy with another Soldier at Fort Rucker, AL.  A subsequent criminal investigation report confirmed the FSM had committed sodomy.

6.  On 23 January 1961, the FSM's immediate commander requested the FSM be separated under the provisions of Army Regulation 635-89 (Personnel Separations – Homosexuality).  The immediate commander cited the criminal investigator's report as the supporting evidence. 

7.  On 23 January 1961, the FSM acknowledged receipt of the notification of separation action.  He waived his right to a hearing before a board of officers to accept the discharge for the good of the service.  He indicated he understood he may receive an under other than honorable conditions discharge and may be deprived of rights and benefits as a veteran under both Federal and state law and that he could encounter substantial prejudice in civilian life due to this type of discharge. 

8.  There is no indication the discharge action for homosexuality was acted upon by the approving authority. 

9.  On 31 January 1961, he pled guilty to and was convicted by a special court-martial of two specifications of being AWOL from 15 to 22 August 1960 and 23 to 29 September 1960, and one specification of escaping from lawful confinement at the Post Stockade.  The court sentenced him to confinement at hard labor for 4 months, a forfeiture of $50.00 pay per month for 6 months, and a reduction to the lowest enlisted grade.  The convening authority approved his sentence on 3 February 1961. 

10.  On 10 March 1961, while in the Stockade, the FSM took an excess amount of pills (overdose) in an attempt to get away from the Post Stockade.  He was admitted to the U.S. Army Dispensary at Fort Sheridan, IL, and later to the U.S. Naval Hospital at Great Lakes, IL, for poisoning, acute, due to overdose. 

11.  A subsequent investigation determined he unlawfully possessed and consumed an undetermined number of sleeping pills.  His final Report of Investigation determined his action was not in line of duty – due to own misconduct.  

12.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 that shows he was discharged in accordance with Army Regulation 635-208 (Personnel Separations) for unfitness with an under other than honorable conditions discharge.  He was issued an Undesirable Discharge Certificate and he was assigned Separation Code 28B (Unfitness).  This form further shows he completed 5 months and 13 days of creditable active military service.  His lost time is not recorded on his DD Form 214. 

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation. 

14.  The applicant provides a letter, dated 27 November 2012, from a funeral home regarding a marker. 

15.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion; (c) drug addiction; (d) an established pattern of shirking; and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides for the separation of enlisted personnel from the Regular Army.  

	a.  Paragraph 1-14 states when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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’s contention that her deceased husband's discharge should be upgraded was carefully considered but it was found to be without merit.  

2.  The FSM's record is void of the facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 29 March 1961 under the provisions of Army Regulation 635-208 by reason of unfitness with a discharge under other than honorable conditions.

3.  In addition, he admitted to criminal investigators that he committed sodomy.  There is no evidence that he raised the issue of his being raped (i.e., that he was sodomized).

4.  The FSM's records reveal a disciplinary history which includes multiple instances of AWOL, one court-martial conviction, and at least one instance of misconduct.  It appears his chain of command initiated separation action against him.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

5.  Based on his record of indiscipline, the FSM's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20130004687



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ABCMR Record of Proceedings (cont)                                         AR20130004687



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