BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150006044 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, spouse of a deceased former service member (FSM), requests upgrade to honorable of the FSM's under other than honorable conditions discharge. 2. The applicant states, in effect: * her husband served in the Army from 1973 to 1974; they were married in 2010 * he tragically died as a result of an accidental fall at work * his untimely death has been emotionally and financially difficult for her * she applied to the Department of Veterans Affairs (VA) and was denied because of her husband's character of service * she feels it is unjust that, as an Army wife, she is being denied benefits * her husband made a sacrifice to serve his country; the lives of others mattered to him * her husband's dying wish was to have his rank and character of service restored; he had been seeking to do this prior to his death * she believes everyone deserves a second chance and asks the Board to make an exception in her and her husband's case 3. The applicant provides: * death certificate, showing the FSM died on 9 February 2013 * cover-page of the FSM's memorial bulletin * five pages of the FSM's medical records * marriage license, dated 18 September 2010 * application to the VA for benefits, dated 17 October 2014 * letter, dated 3 March 2015, from the VA * letter, dated 21 November 2008, from the National Personnel Records Center * DD Form 214 (Report of Separation from Active Duty), for the period ending 19 November 1974 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 27 December 1973. 3. His available service record contains a DA Form 20 (Enlisted Qualification Record) which shows the following: a. He was assigned to a unit at Fort Eustis, VA on or about 18 April 1974. b. The FSM departed his unit in an absent without leave (AWOL) status on 3 June 1974 and returned to military control the next day. c. He again went AWOL on 1 July 1974, was dropped from Army rolls on 30 July 1974, and returned to military control on 7 August 1974. d. He entered an AWOL status on 30 August 1974, and was dropped from Army rolls on 29 September 1974. He was returned to military control on 30 September 1974 and reassigned to the U.S. Army Personnel Control Facility at Fort Gordon, GA. 4. On 1 October 1974, the FSM's commander preferred court-martial charges against the FSM for one specification of AWOL from 30 August 1974 to 30 September 1974. 5. On 2 October 1974, the FSM consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) chapter 10. In his request for discharge, he indicated he: * was making the request of his own free and he had not been subjected to any coercion whatsoever by any person * understood by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge * understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration * understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * elected not to submit a statement in his own behalf 6. He provided information to the separation authority in support of his request, in which he essentially stated: * he was voluntarily requesting discharge * he felt it would be better for him to be a civilian rather than to remain in the Army * he did not wish to be rehabilitated * he understood he would receive an under other than honorable conditions discharge, but despite this character of service, he felt he could still secure a good job; he wanted to be discharged anyway * his counsel had advised him he had 72 hours to consider his request for discharge in lieu of court-martial; he did not want to delay his request 7. On 24 October 1974, the separation authority approved his request for discharge in lieu of court-martial with an under other than honorable conditions discharge. Accordingly, on 19 November 1974, he was discharged at Fort Gordon, GA. 8. His DD Form 214 reflects he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. a. This form also shows he completed 10 months and 23 days of net active service. He had 68 days of lost time. b. He was awarded or authorized the: * National Defense Service Medal * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 9. There is no indication the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. The applicant provides: a. Five pages of medical records which detail the FSM's accident and tragic death. The documents essentially indicate the FSM was working at a construction site when he fell 10 feet and landed on his head. As a result, he suffered a significant traumatic brain injury. He was comatose and placed on life-support. He continued to lose brain function and was declared brain dead. b. Death Certificate showing the FSM died on 9 February 2013. c. A letter from VA, dated 3 March 2015, notifying the applicant her claim for benefits was denied based upon the FSM's under other than honorable conditions discharge. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b provides that 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. The available evidence, to include the FSM’s DD Form 214, shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 chapter 10 with an under other than honorable conditions discharge. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial. The FSM voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation appear to have been met, and the rights of the applicant were fully protected throughout the separation process. 2. The FSM's death was tragic and untimely. The applicant has articulated how his heartbreaking loss has created hardship for her. a. Although he enlisted in the Army during a period when many were being inducted, the FSM, for reasons which are not expressed in the record, chose to depart his unit without authorization on numerous occasions. He twice remained absent long enough to be dropped from Army rolls. b. The FSM's period of AWOL served to diminish the overall quality of his service below that meriting either an honorable or a general discharge under honorable conditions. 3. Based upon the foregoing, the evidence does not support granting the 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) AR20150006044 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006044 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1