PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           15 January 2002
	DOCKET NUMBER:   AR2001062597

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Donald P. Hupman, Jr.		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 that the undesirable discharge (UD) of her deceased husband, hereinafter known as the former servicemember (FSM), be upgraded to one under honorable conditions.

3.  The applicant states that the FSM's sergeant persecuted the FSM, calling him "an Arkansas Hillbilly."  The FSM attempted to remedy the situation through his chain of command and his chaplain, but was unsuccessful.  He then requested transfer to Vietnam, but it was denied.  In desperation, he went AWOL (absent without leave).  Following the FSM's discharge, the applicant states that he was a model citizen, husband, and father.  He was a Christian man who always did his best to help the less fortunate in the community.  The applicant adds that the FSM was never in trouble with the law.

4.  In support of her application, the applicant provides: copies of five letters from members of the community attesting to the FSM's helpfulness; a copy of a Hot Springs (Arkansas) Police Department records check showing that the FSM had no police record; a copy of a Garland County (Arkansas) Police Department records check showing that the FSM had no police record; a copy of a hospital discharge summary showing that the FSM suffered from chronic obstructive pulmonary disease (COPD), but was "a very friendly gentleman" even while suffering from endstage COPD; a copy of the FSM's DD Form 214 (Report of Transfer or Discharge); a copy of her marriage license to the FSM; a copy of the FSM's death certificate; and a two-page self-authored letter.

5.  The FSM’s military records show that he was born in Camden, Arkansas, on 14 January 1953 and enlisted in the Regular Army for 3 years on 16 April 1971.  Upon completion of all required military training, he was assigned to a unit at Fort Carson, Colorado, with duty in military occupational specialty (MOS) 36K, Wireman.

6.  Documents in the FSM's military records show that he complained about not being able to take leave for the birth of his first child and about not being able to volunteer for overseas levy.  Documents also show that he received three nonjudicial punishments (NJP) under Article 15, Uniform Code of Military Justice. The first was on 3 March 1972 for being AWOL from 2-27 February 1972 and on 1 March 1972.  As punishment, he was reduced from grade E-3 to grade E-2.  The second was on 18 March 1972 for being late for Battalion Guard Duty.  As punishment, he received a suspended reduction to grade E-1.  The final NJP was on 28 June 1972 for being late for duty on 12 and 13 June 1972.  As punishment, he received 14 days' extra duty.

7.  The FSM was AWOL from 11 July 1972 to 1 August 1972 and from 16 August 1972 to 26 September 1972.  Upon his return to military control at Fort Carson, court-martial charges were preferred against him.  After consulting with legal counsel, he requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200.  His request was approved and he was separated with a UD on 5 December 1972.  He had 1 year, 5 months, and 6 days of creditable active service and 86 days of lost time due to AWOL.

8.  Following his separation, the FSM ultimately returned to Arkansas where he resided until his death on 26 March 2000 from the effects of COPD.  

9.  The FSM petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 11 November 1983, denied his request.

10.  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, at the time of the FSM's separation, a UD was normally considered appropriate.

CONCLUSIONS:

1.  The FSM served approximately 18 months of creditable service.  He received NJP for being late for guard mount and late for work on two occasions.  He was AWOL on three occasions and received NJP for one of these AWOLs.  Court-martial charges were preferred for the second and third AWOLs (totaling 64 days).

2.  The FSM was, by all accounts, a charitable, giving man who lived a law-abiding life in his home state of Arkansas.  He was a loving husband and father, and was active in his church.  The applicant submitted several letters from friends and acquaintances attesting to the FSM's helpfulness.

3.  The FSM's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  His administrative separation was accomplished with no indication of procedural errors that would tend to have jeopardized his rights.

4.  In view of the minor nature of the indisciplines committed by the FSM, and considering the nearly 30 years of law-abiding, post-service conduct, the Board, as an act of clemency, concludes that the FSM's UD should be upgraded to a general discharge under honorable conditions.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the undesirable discharge of 5 December 1972 now held by the individual concerned, and by issuing to him a general discharge under honorable conditions. 

BOARD VOTE:  

_INW____  ___HOF_  __DPH _  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		   _Irene N. Wheelwright__
		        CHAIRPERSON

INDEX

CASE ID	AR2001062597	
SUFFIX		
RECON		
DATE BOARDED	20020115	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19721205	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	A71.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.