BOARD DATE:	  9 January 2014 

		DOCKET NUMBER:  AR20130008753 


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 on behalf of her deceased spouse, a former service member (FSM), that his discharge under other than honorable conditions be upgraded.

2.  The applicant states the FSM suffered from malaria while serving in the Republic of Vietnam.  Upon his return from Vietnam he experienced family troubles and medical issues which affected him throughout his life.    

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* General Orders Number 3449
* Citation
* 2 pages of text from an online medical dictionary
* a self-authored statement
* Certificate of Death

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 23 May 1967.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11E (Armor Crewman).  

2.  The FSM received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 5 January 1968, for failing to go at the time prescribed to his appointed place of duty.

3.  He served in the Republic of Vietnam during the period 30 July 1968 through 24 July 1969.  

4.  The FSM's records show he received a special court-martial conviction which was adjudicated on 12 June 1970 and approved on 26 June 1970 for being absent without leave (AWOL) during the periods 7 October through 26 November 1969, 1 December through 7 December 1969, and 15 January through 20 April 1970.

5.  The FSM received NJP under the provisions of Article 15 of the UCMJ on     28 July 1970, for being AWOL for the period 6 July to 10 July 1970.

6.  On 9 July 1975, charges were preferred against the FSM for being AWOL during the period 1 August 1970 through 28 June 1975.

7.  On 9 July 1975, the FSM underwent a medical examination.  His record contains a Standard Form (SF) 93 (Report of Medical History) which shows the FSM stated he was in good health on the day of the examination. The form also shows he received treatment for malaria in the Republic of Vietnam in 1969.  His  SF 88 (Report of Medical Examination) shows the FSM was fully qualified for separation. 

8.  On 10 July 1975, 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 a discharge under other honorable conditions, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, the FSM voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

9.  In his request for discharge, the FSM indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  On 25 July 1975, the separation authority approved the FSM's request for discharge and directed issuance of an Undesirable Discharge Certificate.  On 14 August 1975, the FSM was discharged accordingly.  The DD Form 214 he was issued shows he completed 2 years, 10 months, and 4 days of total active service with 1,967 days of lost time.

11.  On 16 June 1989, after careful consideration of the FSM's military records and all other available evidence, the Army Discharge Review Board determined he was properly discharged and denied his request for an upgrade of his undesirable discharge.

12.  The applicant provides a copy of General Orders Number 3449 which show the FSM received the Army Commendation Medal with "V" Device.  She also provides information from a medical dictionary of the causes and symptoms of malaria.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who 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 at any time after court-martial charges are preferred.  Commanders would ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will 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.  At the time, an undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the Service.

14.  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.

15.  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 on behalf of the FSM to upgrade his discharge under other than honorable conditions has been carefully considered and it was determined that there is insufficient evidence to support this request.

2.  The FSM's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the FSM were fully protected throughout the separation process.  Further, the FSM's discharge accurately reflects his overall record of service.

3.  The applicant appears to allege that the FSM suffered from malaria during his service in the Republic of Vietnam which adversely contributed to his behavior and negatively affected his post-service life.  However, while there is evidence in his military records that the FSM was treated for malaria during his service in the Republic of Vietnam, there is no evidence that he was not in good health at the time of his discharge.  Additionally, there is no evidence which shows the FSM's misconduct was the direct result of this condition.  Therefore, this argument is not sufficient to support her request to upgrade the FSM's discharge.

4.  The FSM's record reveals he was AWOL for 1,967 days.  Based on this record of indiscipline, the FSM's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the FSM is not entitled to an honorable or a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130008753





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008753



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1