IN THE CASE OF:	  

		BOARD DATE:  25 February 2014

		DOCKET NUMBER:  AR20130011743 


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 the characterization of service of her late husband, a former service member (FSM), be upgraded from under other than honorable conditions.

2.  The applicant states her husband has died and he was unable to upgrade his discharge.  He did not use any benefits administered by the Department of Veterans Affairs.

3.  The applicant provides copies of the FSM's DD Form 214 (Certificate of Release of Discharge from Active Duty), death certificate, and their lease contract.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 11 October 1978 and held military occupational specialty 12B (combat engineer).  He was advanced to pay grade E-3 on 19 October 1979.  He served in Korea from 30 January 1979 through 29 January 1980.

2.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 7 December 1978 - failing to obey a lawful order on 4 December 1978
* 15 October 1979 – being in an off duty status and off the limits of Camp Pelham, Korea, without a valid pass and failing to go to his appointed place duty on 1 and 2 October 1979
* 10 July 1980 – being absent without leave from 16 to 24 June 1980

3.  On 25 July 1980, a bar to reenlistment was initiated against the FSM.  The FSM's company commander stated the FSM was pending a bad conduct discharge by a special court-martial for 6 counts of refusing to pull extra duty from a previous Article 15, 2 counts of breaking house arrest, 2 counts of disobeying a lawful command from a noncommissioned officer, and disobeying an order from an officer.  The company commander also stated the FSM continually displayed an unwillingness to follow instructions and had an increasingly hostile attitude toward all authority.  He saw no reason that the substandard Soldier should be permitted to reenlist.  The FSM acknowledged receipt of the proposed action and the bar was subsequently approved by the approval authority.

4.  The FSM's record is void of the facts and circumstances surrounding his discharge; however, his record contains a DD Form 214 which shows he was discharged in pay grade E-1 on 10 September 1980, under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), chapter 10 (in lieu of trial by court-martial).  He completed 1 year, 10 months, and 22 days of net active service with 8 days of time lost.

5.  On 21 October 1981, the Army Discharge Review Board denied the FSM'S request for an upgrade of his discharge.

6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b – a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's record is void of the facts and circumstances surrounding his discharge; however, the evidence of record shows he was discharged on 10 September 1980, under the provisions of Army Regulation 635-200), chapter 10 (in lieu of trial by court-martial), with an under other than honorable conditions characterization of service. 

2.  The FSM was pending charges for the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of court-martial.  

3.  While the Board is sympathetic to the applicant's request, she provided no evidence or a convincing argument to show the FSM's discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows the FSM's misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.

4.  Without evidence to the contrary, it appears the FSM's administrative discharge was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  Therefore, there is no basis for granting the applicant the 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)                                         AR20130011743



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ABCMR Record of Proceedings (cont)                                         AR20130011743



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