IN THE CASE OF:	   

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130006967


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 her deceased husband's discharge characterization, from under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* the upgrade of her deceased husband's discharge is warranted by his good service in a war zone
* her deceased husband left the installation without permission to be with his ailing father in North Dakota
* after he arrived in North Dakota, his father passed away and he attended the funeral
* after the funeral, he did not return to the installation where he was assigned
* he was considered absent without leave (AWOL) for a year and a few months
* she does not know the circumstances that led to his apprehension by authorities and his return to military control in Colorado

3.  The applicant provides:

* the FSM's State of North Dakota Certification of Death
* the FSM's obituary
* the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 
Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, 
has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM enlisted in the Regular Army on 30 June 1970.  He completed his initial entry training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  On 15 October 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself without authority from his unit, on or about 11 October 1970. 

4.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from on or about 2 December 1970 through on or about 29 November 1971.

5.  On 18 March 1971, he was honorably discharged from the Army for the purpose of immediate reenlistment.  He reenlisted in the Regular Army on 19 March 1971.

6.  On 20 September 1971, he accepted NJP under the provisions of Article 15 of the UCMJ, for failing to obey a lawful regulation and for wrongfully possessing marijuana, on or about 12 September 1971.

7.  On 11 May 1972, he departed his Fort Knox, KY, unit in an AWOL status.  He ultimately returned to military control at Fort Carson, CO, on 10 August 1972. 

8.  On 14 August 1972, court-martial charges were preferred against him for being AWOL from on or about 11 May 1972 through on or about 10 August 1972.

9.  On 16 August 1972, he 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 undesirable discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service – in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

10.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he may be deprived of many or all Army benefits, that he may 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 law. 

11.  On 8 November 1972, the separation authority approved his request for discharge and directed that he be issued an Undesirable Discharge Certificate.  

12.  On 9 January 1973, he was discharged accordingly.  The DD Form 214 he was issued shows he was credited with the completion of 2 years, 1 month, and 4 days of total active service.  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

13.  There is no indication the applicant applied to the Army Discharge Review Board for a review of his discharge within its 15-year statute of limitations.

14.  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 VA 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 an individual who was discharged for the good of the Service.

15.  Army Regulation 635-200, 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.

16.  Army Regulation 635-200, 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's request for an upgrade of her deceased husband's discharge characterization, from under other than honorable conditions to an honorable discharge, was carefully considered; however, there is insufficient evidence to support her request.

2.  The FSM's record indicates he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial. 

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the FSM's rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, including his record of NJP and multiple periods of AWOL, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, the FSM is not entitled to an under honorable conditions (general) discharge, nor is he entitled to an honorable 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 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20130006967



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