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Decision Text

ARMY | BCMR | CY1990-1993 | 9305411
Original file (9305411.rtf) Auto-classification: Denied
APPLICANT REQUESTS: The applicant requests, in effect a reconsideration of her deceased husband’s previous application to upgrade his discharge to a general discharge.
APPLICANT STATES : She claims in effect that the former service member (FSM) died of a condition he contracted from the exposure to Agent Orange while assigned to Vietnam. That this condition caused him to go AWOL upon his return from Vietnam which made his discharge unjust.

 NEW EVIDENCE OR INFORMATION : Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 31 March 1993 (COPY ATTACHED).

The applicant’s claim that the FSM died of a Vietnam related condition and that he was discharged unjustly is new evidence.

No evidence was found, in the FSM’s military records that he had ever been assigned to Vietnam.

 DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In the absence of evidence that the FSM was assigned to Vietnam the applicant’s current contention that the FSM died of a medical condition related to the exposure to Agent Orange while in Vietnam is unfounded.

2. Even if he had served in Vietnam and developed a disabling condition as a result, in the absence of evidence that, at the time of the offenses or the discharge, the applicant was so impaired by emotional or mental problems so severe that he could not both tell right from wrong and adhere to the right the contention of such impairment does not demonstrate an error or an inequity in the discharge.

3. Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file. It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit. The Board has never denied an application simply because it was not submitted within the required time.
4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5. In view of the foregoing, there is no basis for granting the applicant's request.

 DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


 BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ CONCUR WITH DETERMINATION

                  Loren G. Harrell
                   Director

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