IN THE CASE OF:	  

		BOARD DATE:  18 March 2014

		DOCKET NUMBER:  AR20130014203 


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

2.  The applicant states that neither her husband nor any one identified that he had developed a mental condition or post-traumatic stress disorder (PTSD) at the time.  Her husband had stated that being an infantryman was no easy task after being raised and taught by parents that "thou shall not kill."  Her husband had just learned about PTSD, to include mental conditions, and how it affects military veterans.

3.  The applicant provides copies of the following:

* FSM's DD Form 214 (Report of Separation from Active Duty) ending on 22 February 1979
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 14 October 1980
* their marriage certificate
* three reference letters
* FSM's death certificate
* State of North Carolina Criminal Record Search




CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army (RA) on 21 June 1976 and he held military occupational specialty (MOS) 11B (infantryman).  

2.  On 7 September 1978, the FSM accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order and failing to go to his appointed place of duty.  His punishment included a reduction to pay grade E-3 and extra duty.  

3.  The FSM was honorably discharged on 22 February 1979 for the purpose of immediate reenlistment.  He completed 2 years, 8 months, and 3 days of net active service this period.  

4.  The FSM reenlisted in the RA on 23 February 1979, for 3 years, and continued to serve in MOS 11B.  He served in Hawaii from 7 February 1979 through 24 February 1981.  He was again promoted to pay grade E-4 on 8 May 1979.

5.  The FSM was again reduced to pay grade E-3, on 23 June 1979.

6.  The FSM again accepted NJP under Article 15, UCMJ, on/for:

* 11 July 1979 - failing to go to his appointed place of duty
* 31 July 1979 - being absent without leave (AWOL) from 27 through 31 July 1979; his punishment included a reduction to pay grade E-2
* 10 August 1979 - failing to go to his appointed place of duty

7.  His record contains two DD Forms 458 (Charge Sheet), completed by the Commander, 1st Battalion, 14th Infantry, 2nd Brigade, 25th Infantry Division, Schofield Barracks, charging the FSM on/with:

* 31 October 1979 - six specifications each of failing to go to his appointed place of duty and two specifications each of being AWOL from 25 through 27 September 1979 and from 4 through 16 October 1979
* 20 December 1979 - three specifications each of being AWOL from 6 to 8 November 1979, 13 to 16 November 1979, and from 17 November 1979 through 27 July 1980

8.  The FSM was returned to duty on 29 July 1980.

9.  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 14 October 1980, under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), chapter 10.  His service was characterized as under conditions other than honorable.  He completed 9 months and 26 days of net active service this period and had 274 days of time lost.

10.  The applicant provided the following:

* three reference letters wherein the individuals attested that the FSM was quite reliable, hardworking, dependable, honest, a very peaceful person, and wished the FSM success with that matter
* A State of North Carolina Criminal Record Search, dated 28 May 2013, which noted seven criminal cases in the courts on the FSM  

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

12.  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 conditions other than honorable discharge would normally be furnished to an individual who was discharged for the good of the service.
   
   b.  Paragraph 3-7a - a 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 the FSM was pending court-martial charges in October and December 1979 for the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  

2.  There is no evidence of record and the applicant provided none to show PTSD or any mental or medical conditions prevented her husband's satisfactory completion of his second term of enlistment.  

3.  While the Board is sympathetic, the applicant did not provide sufficient evidence or a convincing argument to show her husband's discharge should be upgraded and her husband's 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 between February 1979 and October 1980 below that meriting a general or a fully honorable discharge.

4.  Without evidence to the contrary, it appears the FSM's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  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)                                         AR20130014203





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ABCMR Record of Proceedings (cont)                                         AR20130014203



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