IN THE CASE OF:	  

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130006541 


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 brother of a deceased former service member (FSM), requests, in effect, that the FSM's records be corrected by upgrading his undesirable discharge (UD) to honorable.

2.  The applicant states the FSM's records are not in error.  The applicant is seeking his own closure by being able to put the FSM's ashes in a national cemetery.

3.  The applicant provides copies of the FSM's:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Certificate of Death, dated 21 April 2011

CONSIDERATION OF EVIDENCE:

1.  On 28 August 1967, the FSM was inducted into the Army of the United States.  He completed his initial training and was awarded military occupational specialty 76Y (Unit and Organization Supply Specialist).






2.  Records show the FSM was:

* Absent without leave (AWOL) from 21 March to 13 October 1968
* Confined from 14 October to 19 December 1968
* AWOL from 3 March to 4 September 1969 and from 1 October 1969 to 
6 October 1970

3.  In October 1970, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, being AWOL from on or about 3 March to 4 September 1969 and from on or about 1 October 1969 to 
6 October 1970.

4.  On 7 October 1970, the FSM consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.

5.  After consulting with counsel and being advised of his rights and options, the FSM submitted a formal request for discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UD which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a UD.

6.  In his request for discharge, the FSM acknowledged that he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  The separation authority approved the FSM’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 25 November 1970, the FSM was discharged accordingly.  He had completed a total of 11 months and 23 days of creditable active service and accrued 
827 days of time lost due to being AWOL and in confinement.

8.  There is no indication that the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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.

10.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for being AWOL of more than 30 days, is a dishonorable discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's records should be corrected by upgrading his UD to honorable discharge so that his ashes can be put in a national cemetery.  The applicant clearly acknowledges there is no error in the FSM's records.

2.  The FSM's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Based on the FSM's record of indiscipline, his service clearly does not meet the standards of acceptable conduct for Army personnel.  His lengthy period of lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

4.  The applicant's desire to obtain veterans burial benefits for the FSM is not justification to upgrade his discharge.

5.  In view of the above, 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 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)                                         AR20130006541



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ABCMR Record of Proceedings (cont)                                         AR20130006541



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