IN THE CASE OF:	

		BOARD DATE:	    13 March 2014

		DOCKET NUMBER:  AR20130014220 


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 wife of a deceased former service member (FSM), requests, in effect, an upgrade of the FSM's under other than honorable conditions characterization of service.

2.  The applicant states the FSM had an unknown condition at the time of his service and felt that he could not lead the way he should.  As such, he wanted to get out of the Army.  After his military service he was diagnosed with diabetes and other health problems.  The applicant was informed that if she wanted to receive benefits she needed to have the FSM's records corrected.

3.  The applicant provides a medical examiner's certification of death and a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 15 February 1979 and held military occupational specialty 96B (Intelligence Analyst).  He was assigned to Fort Bragg, NC during the period of his military service.  The highest rank/grade he attained while serving on active duty was private first class/E-3.

2.  His record contains a DA Form 2627 (Record of Proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ)), which shows he accepted nonjudicial punishment (NJP) on 6 November 1979 for failing to be at his appointed place of duty.

3.  His record contains a Bar to Reenlistment Certificate initiated by his immediate commander on 8 April 1980.  His commander stated essentially that the FSM had failed to repair (report for duty) on two separate occasions, was lacking in motivation and self-confidence in the performance of his duties, and displayed an "I don't care attitude."  The bar to reenlistment was approved on 
23 April 1980.

4.  His records show he accepted NJP under the provisions of Article 15 of the UCMJ on:

* 2 May 1980 for being absent without leave (AWOL) from 20 April 1980 to 22 April 1980
* 2 June 1980 for failing to report to his appointed place of duty 

5.  His record contains three DA Forms 4187 (Personnel Actions) showing he was AWOL from 21 July 1980 to 9 January 1981.

6.  His record contains a court-martial charge sheet, dated 21 January 1981, which shows he was charged with being AWOL from 21 July 1980 to 9 January 1981.

7.  A review of his available military medical records indicate that he sustained common injuries or illnesses such as sprains to ankles or knees and a cold.

8.  His record contains a Report of Mental Status Evaluation, dated 21 January 1981, which shows his behavior was normal, he was fully alert and oriented, his mood was level, this thinking process was clear and his thought content normal, his memory was good, and no signs of mental illness were detected.  Additionally, the examining medical official noted that he was mentally responsible, able to distinguish between right and wrong and adhere to the right, he had the mental capacity to understand and participate in board proceedings, and he met medical retention standards.  

9.  On 21 January 1981, he voluntarily requested discharge for the good of the service in accordance with (IAW) Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (For the Good of the Service - In Lieu of Court-Martial).  He understood that he may request discharge for the good of the service because of the charge which had been preferred against him IAW the UCMJ, which authorizes the imposition of a bad conduct or dishonorable discharge.  

	a.  He stated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person and had been advised of the implications that were attached to his request.  He acknowledged that by submitting this request for discharge that he understood the elements of the offense charged and was guilty of some or all of the charges against him or of lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstance did he desire further rehabilitation because he had no desire to perform further military service.

	b.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel for consultation.  He consulted with counsel and was fully advised of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, any relevant lesser included offense thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  He also acknowledged that counsel advised him of the possible defenses which appeared to be available at the time, the maximum permissible punishment if found guilty, and of the legal significance of his discharge.  He indicated that although he had been furnished with legal advice, his request for discharge was his own decision.

	c.  He acknowledged he understood that if his request for discharge was accepted he could be discharged under conditions other than honorable.  He had been advised and understood the possible effects of an under other than honorable conditions discharge, that as a result of the issuance of an under other than honorable conditions discharge he would be deprived of many or all Army benefits, he could be ineligible for many benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He further understood that there was no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished to have his discharge reviewed.  He acknowledged that he realized the act of consideration by either board did not imply that his discharge would be upgraded.

	d.  He acknowledged he understood that once his request for discharge was submitted it could be withdrawn only with the consent of the commander exercising court-martial authority, or without that commander's consent in the event a trial results in an acquittal or the sentence does not include a punitive discharge even though one could have been adjudged by the court.  He further understood that if he were to depart absent without leave his request would be processed and he could be discharged even though he was absent.
	e.  He acknowledged that he had been advised he could submit any statements he desired in his own behalf to accompany his request for discharge. However, there were no statements attached to his request for discharge.  

10.  His record contains a memorandum, dated 21 January 1981, wherein his immediate commander stated he had personally interviewed the FSM who stated his approximate 172 days of AWOL were caused by personal problems and by his dislike for the Army.  He stated that he was very unhappy while assigned to a psychological operations unit at Fort Bragg, NC and that he began to drink heavily.  His drinking caused him to be in constant trouble with his superiors and he was the recipient of four instances of NJP under the provisions of Article 15 of the UCMJ, one for a previous AWOL period and three for failure to repair.  He stated that he could not think of one thing he liked about the Army and that he had made a mistake in joining.  The pressure of trying to perform his duties and deal with his personal problems finally became more than he could handle and he departed AWOL after one year at Fort Bragg.  

	a.  On 9 January 1981 he was arrested for being AWOL from the Army after his stepfather called the Miami, FL authorities.  He was turned over to military authorities on 20 January 1981.  He has no desire to remain in the Army and stated that he only wants to return home as soon as possible and continue with his civilian job, that of an air conditioner repairman.

	b.  His commander stated that based on the FSM's attitude toward the military, and his lack of rehabilitative potential, he recommended the FSM receive an under other than honorable conditions characterization of service.

11.  On 17 March 1981, the court-martial convening authority approved the FSM's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to private (PV1)/E-1.

12.  On 30 March 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  His DD Form 214 shows he completed 1 year, 7 months, and 27 days of creditable active service with 174 days of lost time.

13.  There is no indication that he applied to the ADRB for an upgrade of his discharge within that boards 15 year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has 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 in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the FSM voluntarily requested discharge for the good of the service 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.
2.  His record contains 172 days of lost time due to AWOL and four instances of NJP under the provisions of Article 15 of the UCMJ which tarnished his overall record of service.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case.  

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a change in a member’s 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)                                         AR20130014220





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ABCMR Record of Proceedings (cont)                                         AR20130014220



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