IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008202 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, the wife of a deceased former service member (FSM), requests, in effect, an upgrade of the FSM's under other than honorable conditions (UOTHC) discharge. 2. The applicant states she needs to receive her late husband’s benefits. 3. The applicant provides 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. On 14 February 1968, the FSM enlisted in the Regular Army. After initial training he was awarded military occupational specialty 70A (Clerk). 3. The FSM’s record contains a DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record)) and Special Court-Martial Order Number 1620, dated 7 June 1969, which shows on or about 26 May 1969 a special court-martial (SPCM) found him guilty of being absent without leave (AWOL) for the period 1 March 1969 to 6 June 1969. He was sentenced to confinement at hard labor for 3 months and forfeiture of pay of $50.00 per month for 3 months. 4. The FSM’s record contains a DA Form 458, dated 12 August 1970, which shows he was pending a court-martial for being AWOL for the period 15 August 1969 to 3 August 1970. 5. On 20 August 1970, the FSM voluntarily requested to be discharged for the good of the service in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (For the Good of the Service - In Lieu of Court-Martial). He understood that he could request discharge for the good of the service because of the charge which had been preferred against him in accordance with the Uniform Code of Military Justice (UCMJ), which authorized the imposition of a bad conduct or dishonorable discharge. a. He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with counsel. He consulted with counsel and was fully advised of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, any relevant lesser included offense thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty. He also acknowledged that counsel advised him of the possible defenses which appeared to be available at the time, the maximum permissible punishment if found guilty, and of the legal significance of his discharge. He indicated that although he had been furnished with legal advice, his request for discharge was his own decision. b. He acknowledged he understood that if his request for discharge was accepted he could be discharged with an UOTHC discharge. He had been advised and understood the possible effects of an UOTHC discharge, that as a result of the issuance of an UOTHC discharge he would be deprived of many or all Army benefits, he could be ineligible for many benefits administered by the Department of Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood that he could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. He further understood that there was no automatic upgrading or review by any Government agency of a less than honorable discharge (HD) and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished to have his discharge reviewed. He acknowledged that he realized the act of consideration by either board did not imply that his discharge would be upgraded. c. He acknowledged he understood that once his request for discharge was submitted it could be withdrawn only with the consent of the commander exercising court-martial authority, or without that commander's consent in the event a trial resulted in an acquittal or the sentence did not include a punitive discharge even though one could have been adjudged by the court. He further understood that if he were to depart absent without leave, his request would be processed and he could be discharged even though he was absent. d. He acknowledged that he had been advised he could submit any statements he desired in his own behalf to accompany his request for discharge. However, there were no statements attached to his request for discharge. 6. On 20 August 1970, the court-martial convening authority approved the FSM's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with the issuance of an UOTHC Discharge Certificate and reduction to private (PV1)/E-1. 7. On 28 August 1970, the FSM was discharged under the provisions of Army Regulation 635-200, chapter 10, with an UOTHC discharge. His DD Form 214 shows he completed 1 year, 6 months, and 26 days of creditable active service with 349 days of lost time. 8. On 16 January 1979, the FSM applied to the ADRB for an upgrade of his discharge; however, on 23 June 1977, his request was denied. 9. 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 HD or general discharge (GD) is authorized, a discharge UOTHC is normally considered appropriate. a. Paragraph 3-7a states an HD is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states a GD 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. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The evidence shows that having been advised by legal counsel the FSM voluntarily requested discharge for the good of the service in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the FSM were fully protected throughout the separation process. Further, the FSM's discharge accurately reflects his overall record of service. 2. The FSM’s record contains 349 days of lost time due to AWOL which tarnished his overall record of service. As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. In view of the foregoing, there is an insufficient evidentiary basis for granting an HD or a GD in this case. 3. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits. Every case is individually decided based upon its merits when an applicant requests a change in a member’s discharge. 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) AR20130014220 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008202 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1