IN THE CASE OF:	  

		BOARD DATE:	  30 September 2014

		DOCKET NUMBER:  AR20140003291 


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 undesirable discharge (UD) of her late husband, a former service member (FSM), be upgraded to honorable.

2.  The applicant states she has a disabled child and no income.  The FSM’s fighting did not justify the type of discharge he received.

3.  The applicant provides copies of the FSM's DD Form 214 (Report of Transfer or Discharge), four character letters, and the FSM's death certificate.

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 1 August 1962, completed training, and was awarded military occupational specialty 723.17 (Communications Center Specialist).

3.  On 5 September 1963, a special court-martial found the FSM guilty of being absent without leave (AWOL) from 8 July 1963 to 12 August 1963.  This period of AWOL ended as the result of apprehension.  His sentence included confinement for 3 months.

4.  On 6 December 1963, a special court-martial found the FSM guilty of being AWOL from 9 October 1963 to 24 October 1963.  His approved sentence included confinement for 45 days.

5.  On 21 July 1964, a special court-martial found the FSM guilty of being AWOL from 10 June 1964 to 11 June 1964 and 12 June 1964 to 3 July 1964.  His sentence included confinement for 6 months. 

6.  On 3 September 1964, the FSM's command initiated discharge action on the FSM under Army Regulation 635-208 for unfitness.

7.  The discharge authority waived further rehabilitation efforts and approved the discharge recommendation.  He directed the FSM be reduced to the lowest enlisted grade and receive a UD. 

8.  The FSM was discharged on 26 October 1964 with a UD.  He had 1 year, 9 months, and 7 days of creditable active service with 169 days of lost time.  He is not shown to have received any personal awards, decorations, commendations, citations, or recommendations.

9.  The letters provided by the applicant describe the FSM as having been a caring and reliable man; a loving father and husband; an upstanding member of the community and someone you could bank on.

10.  There is no indication the FSM had applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.

11.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed; or rehabilitation was impracticable and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  As in effect at the time of the applicant's service it provided that:

	a.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service has met the standards of acceptable conduct and performance of duty.

	b.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type and character of the FSM’s discharge is commensurate with his overall record.

2.  The letters attesting to the FSM’s good character and post-service adjustment and conduct are noted, but they are insufficient as the sole basis for relief because they do not appear to outweigh the repeated misconduct that led to the FSM’s separation.  

3.  While the applicant's personal and financial situations are unfortunate, it has no bearing on the characterization of the FSM's service.  Furthermore, the FSM was not discharged simply for fighting; he was discharged for reoccurring discipline problems.

4.  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)                                         AR20140003291



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ABCMR Record of Proceedings (cont)                                         AR20140003291



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