RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 January 2006 DOCKET NUMBER: AR20050001537 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 Ms. Rosa M. Chandler Analyst The following members, a quorum, were present: Mr. William D. Powers Chairperson Mr. Thomas M. Ray Member Mr. Randolph J. Fleming Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that the undesirable discharge (UD) of her deceased brother by court order, hereafter known as the former service member (FSM), be upgraded from an UD to a general discharge (GD) or a fully honorable discharge (HD). 2. The applicant states the FSM, at an early age, was continuously tortured by a babysitter and that he became a pyromaniac as a result of this torture. His reputation and psyche were damaged and he was unable to withstand the rigors of boot camp. He was convicted and placed in confinement for possession of marijuana. Soon thereafter he was separated with an UD after being involved in a fighting incident. 3. The applicant also states that the FSM was not drafted; he voluntarily enlisted despite having a high lottery number. Therefore, the FSM was "good enough to die for his country" and the applicant believes his UD should be upgraded based on the change in society's attitude towards marijuana use and due to the fact that the FSM was unable to withstand the rigors of boot camp due to childhood abuse. 4. The applicant provides in support of her request: a. The FSM's Certificate of Birth and the applicant's Certificate of Birth which demonstrates proof of kinship. b. A Court Order from the District Court of the State of Kansas, dated 5 January 2005 that shows the applicant petitioned the court for an order declaring the FSM to be presumptively dead. The court ordered and adjudged the FSM was presumed dead under the Probate Code presumption of death after being absent for more than 7 years as of July 1979. c. A letter written by the FSM's attorney, in which the attorney states, he has no recollection as to what the FSM was charged with 30 years ago when he was separated "for the good of the service in 1971." d. The applicant's Baptism Certificate, dated 19 December 2000. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error which occurred on 28 October 1971. The application submitted in this case is dated 6 January 2005. 2. On 9 June 1971, the FSM enlisted in the Regular Army for a period of 2 years. The available evidence shows that while assigned to Fort Campbell, Kentucky for basic combat training (BCT), he was pending separation for fraudulent enlistment due to a civilian drug possession charge that he failed to disclose prior to enlistment. The disposition of the fraudulent enlistment issue is not stated in the available record. However, the FSM's unit commander during that time frame stated that he believed that the FSM's negative attitude and insubordination would make rehabilitation questionable. 3. On 9 September 1971, court-martial charges were preferred against the FSM for willfully disobeying a lawful order given by his first sergeant, a noncommissioned officer (NCO), on 3 and 7 September 1971 and for disobeying a lawful order given by a lieutenant colonel, his battalion commander, on 8 September 1971. 4. An undated statement shows the FSM consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200, for the good of the service in lieu of trial by court-martial. He was advised that he could receive an UD and he authenticated the statement to acknowledge that he understood the ramifications of receiving an UD. He did not submit a statement in his own behalf. 5. On 26 October 1971, the appropriate authority approved the FSM’s request for discharge under the provisions of chapter 10, AR 635-200. The FSM's DD Form 214 shows that, on 28 October 1971, he was administratively separated with an UD under the provisions of chapter 10, Army Regulation 635-200 "for the good of the service." He had completed 4 months and 20 days of active military service and he had no recorded lost time. 6. There is no evidence that the FSM ever applied to the Army Discharge Review Board for a review of his discharge under that board's 15-year statute of limitations. 7. 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 at any time after the 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. However, at the time of the FSM's separation the regulation provided for the issuance of an UD. DISCUSSION AND CONCLUSIONS: 1. The available evidence does not indicate the FSM was charged with drug possession while a member of the armed forces; the record shows that he hid a civilian charge of drug possession when he was attempting to enlist. There also is no evidence the FSM had problems dealing with the rigors of BCT or that child abuse contributed to his misconduct. 2. The Board empathizes with the applicant in the loss of her brother. However, the FSM served in the military for only a very short time and his voluntary request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations then in effect. There is no indication that the request was made under coercion or duress. 3. The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __wdp___ __tmr___ __rjf___ 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. William D. Powers ______________________ CHAIRPERSON INDEX CASE ID AR20050001537 SUFFIX RECON DATE BOARDED 20060105 TYPE OF DISCHARGE (UD) DATE OF DISCHARGE 19711028 DISCHARGE AUTHORITY AR635-200, Chap 10 DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1. 144.7000 2. 3. 4. 5. 6.