PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            6 February 2001 
	DOCKET NUMBER:   AR2000048169

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his records be corrected to show that he was issued a general discharge. 

3.  The applicant states, in effect, that was supposed to receive a general discharge; however, contrary to what his orders directed, he received an undesirable discharge.  He further states that he was a good soldier and that while attending his advanced individual training his wife was kidnapped, raped and murdered.  At this point he needed some time to get himself back together and after going AWOL elected to accept a discharge in lieu of trial by           court-martial.  In support of his application he submits a copy of his orders showing that he was to be discharged under honorable conditions and a copy of his wife’s death certificate.

4.  The applicant’s military records show that he was married at the time he was inducted in Las Vegas, Nevada on 20 June 1972.  At the time of his induction he claimed ear trouble and provided statements from medical personnel which indicated that the applicant had trouble with his ears (vertigo) and opined that he should be disqualified for service in the armed forces.  The applicant was found fit for induction in Phoenix, Arizona and was transferred to Fort Leonard Wood, Missouri to undergo his training.  He successfully completed his basic training and remained at Fort Leonard Wood to undergo his advanced individual training. 

5.  On 17 October 1972 the applicant’s wife was found strangled to death in a mine shaft in Clark County, Nevada.  Her death was ruled a homicide.

6. He was advanced to the pay grade of E-3 on 3 November 1972 and on 13 November 1972 he went absent without leave (AWOL) and remained absent until he surrendered to military authorities at Fort McArthur, California on 29 January 1973 and charges were preferred against him at Fort Ord, California.

7.  On 8 February 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He indicated at that time that he had an equilibrium problem and should not have been eligible for induction and that since the death of his wife he had no desire or intent to remain on active duty.

8.  The applicant’s commander indicated that the applicant had been psychiatrically cleared for separation and recommended that given the unusual circumstances (murder of his wife prior to AWOL) the applicant be furnished a General Discharge Certificate.

9.  The remainder of his chain of command recommended approval of a general discharge and the appropriate authority (a major general) approved the request for discharge on 28 March 1973 and directed that he be furnished a General Discharge Certificate.  Orders were published that reflected that he be discharged under honorable conditions.

10.  However, for reasons not explained in the available records, the applicant was discharged under other than honorable conditions on 3 April 1973 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by              court-martial.  He had served 6 months and 27 days of total active service and had 77 days of lost time due to AWOL.

11.  There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  A review of the applicant’s records shows that he had no record of any other disciplinary actions taken against him and that his conduct and efficiency ratings were deemed excellent.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable laws and regulations in effect at the time and there is no indication that any of his rights were violated.

2.  However, the approval authority directed that he be furnished a General Discharge Certificate at the time of discharge and it appears that while his discharge orders direct that he was receiving a general discharge, he actually received an undesirable discharge.  Therefore, it appears that he was unjustly issued an undesirable discharge in lieu of the general discharge he was supposed to have received.

3.  While the Board does not condone his misconduct, the Board does find that the unusual circumstances that led to his misconduct (AWOL) are sufficiently mitigating to warrant an upgrade of his discharge to fully honorable, especially given the fact that he was issued the wrong discharge at the time of his separation in 1973 and has lived with the consequences of that discharge for such a long time.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION: 

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with an Honorable Discharge Certificate on 3 April 1973.

2.  That the Department issue to him an Honorable Discharge Certificate from the Army of the United States, dated 3 April 1973, in lieu of the undesirable discharge of the same date held by him.

BOARD VOTE:  

____tl___  ___rvo __  ___wtm _  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2000048169	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/02/06	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/04/03	
DISCHARGE AUTHORITY	AR635-200, CH10 	
DISCHARGE REASON	A70.00/GD OF SVC	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/GD OF SVC	
2.		
3.		
4.		
5.		
6.