RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060009843 


	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.



	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 late husband, a former service member (FSM), be upgraded.

2.  The applicant states, in effect, that although the FSM honorably served in the Republic of Vietnam (RVN), he received an under other than honorable conditions (UOTHC) discharge.  She also indicates that upon the FSM’s return from the RVN, he suffered from mental behavior problems and was unable to cope with his assigned duties.  She claims that he developed lung cancer as a result of being exposed to the chemical “Agent Orange” while serving in the RVN and was unable to hold a job after his discharge from the Army.  The applicant asks that favorable consideration be given to her request, which would allow her to receive the Department of Veterans Affairs (VA) benefits that she deserves.

3.  The applicant provides a Self-Authored Statement; VA Cover Sheet, dated 
30 June 2006, Certificate of Death and Marriage License in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that occurred on 4 April 1973, the date of the FSM's separation.  The application submitted in this case is dated 5 June 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The FSM’s record shows he was initially inducted into the Army of the United States and entered active duty on 7 May 1968.  He was initially trained in and awarded military occupational specialty (MOS) 13A (Field Artillery).  

4.  On 14 April 1969, the FSM was honorably discharged for the purpose of enlisting in the Regular Army.  The separation DD Form 214 issued at that time shows he completed 11 months and 8 days active military service and that he held the rank of private/E-1 (PV1).  
5.  On 15 April 1969, the FSM reenlisted and was retrained in MOS 44C (Welder).  His Enlisted Qualification Record (DA Form 20) shows, in Item 31 (Foreign Service), that he served in Thailand from 2 November 1969 to 24 October 1970 and in the RVN from 2 June 1971 to 30 March 1972.  It also shows that he earned the following awards during his active duty tenure:  National Defense Service Medal; RVN Campaign Medal with Device 1960; Vietnam Service Medal; Overseas Service Bar; and Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar.

6.  Item 33 (Appointments & Reductions) of the FSM's DA Form 20 shows that he was promoted to specialist four (SP4) on 19 March 1969, and that this was the highest rank he attained and held while serving on active duty.  It also shows he was reduced to the grade of PV1 on 28 March 1973.

7.  Item 44 (Time Lost Under Section 972, Title 10, United States Code) of the FSM’s DA Form 20 shows he accrued 241 days of time lost due to being absent without leave (AWOL) during the following three periods:  10 March – 28 March 1972; 10 July – 7 November 1972; and 27 November – 7 March 1973.

8.  The FSM's record also reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three dates for the offenses indicated:  1 April 1969, for failing to go to his appointed place of duty at a prescribed time; 17 June 1969, for bringing alcoholic beverages into an unauthorized location; and 4 August 1970, for disobeying a lawful order given by his commanding officer.

9.  On 20 November 1972, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the FSM for violating Article 86 of the UCMJ by being AWOL from 10 July 1972 through 8 November 1972.

10.  The FSM's Military Personnel Records Jacket (MPRJ) contains a Standard Form 88 (Report Medical Examination) that shows he underwent a medical examination for the purpose of separation on 20 November 1972.  This document reveals no disqualifying physical or mental conditions, and Item 77 (Examinee) shows that the FSM was qualified for separation at that time.  


11.  On 20 March 1973, the FSM consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.  In the FSM’s request for discharge, he acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.

12.  The separation authority approved the FSM’s request for discharge and directed that he receive an UD.  On 4 April 1973, the FSM was discharged accordingly.  

13.  The DD Form 214 issued to the FSM on 4 April 1973, the date of his discharge, confirms he was separated UOTHC under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by 
court-martial.  It also shows at the time of his discharge, he had completed a total of 4 years, 2 months, and 27 days of creditable active military service and had accrued 241 days of time lost due to AWOL.  The FSM applicant authenticated the separation document with his signature on the date of his discharge.

14.  There is no evidence of record to show that the FSM petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.  

15.  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 applicant's separation the regulation provided for the issuance of an undesirable discharge (UD).


16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 of the physical evaluation regulation provides guidance on presumptions of fitness.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that the FSM’s UD should be upgraded based on his RVN service and because he was exposed to “Agent Orange” while serving in the RVN, which caused him to suffer from a mental behavioral problems were carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, a member must be unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for separation processing through medical channels.  The evidence of record provides no indication the FSM suffered from a physically or mentally disqualifying condition that would have supported his separation processing through Army PDES at the time of his separation from active duty.  The evidence does confirm the FSM underwent a separation physical examination and was cleared for separation by competent medical authority.

3.  The evidence of record confirms that the FSM was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The FSM, after consulting with counsel and being advised of his rights and the effects of an UD, voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to an offense(s) under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the FSM's rights were fully protected throughout the separation process.  As a result, an upgrade to his discharge would not be appropriate at this time.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this request.
5.  Records show the alleged error or injustice now under consideration on should have been discovered on 4 April 1973, the date of the FSM's discharge, and there is no indication the FSM petitioned the ADRB for an upgrade of his discharge within the 15-year statute of limitations, or that he ever applied to this Board for relief prior to his death.  Therefore, the time to file a request for correction of any error or injustice expired on 3 April 1977.  An application was not filed within the 3-year statute of limitations and the applicant has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___WDP_  __PMS__  __JLP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____William D. Powers____
          CHAIRPERSON


INDEX

CASE ID
AR20060009843
SUFFIX

RECON
NO
DATE BOARDED
2007/03/13
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
1973/04/04
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
In lieu of trial by court martial
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000
2.

3.

4.

5.

6.