RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 12 June 2007
DOCKET NUMBER: AR20060017589
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. Gerard Schwartz
Acting Director
Ms. Antoinette Farley
Analyst
The following members, a quorum, were present:
Ms. Margaret K. Patterson
Chairperson
Mr. Ronald D. Gant
Member
Mr. Rowland C. Heflin
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 military records of her husband, a deceased former service member (FSM) be upgraded to an honorable discharge and his rank should be restored to specialist/pay grade E-4.
2. The applicant, states, in effect, that the FSM suffered from a mental health disability incurred during his honorable military service. The applicant continues that the FSM's mental health/disability is not a reason for receiving an under other than honorable discharge or demotion in rank.
3. The applicant provided a chronological summary of the FSM's military service, a copy of the disability determination unit appeal, and the FSM's death certificate in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant is the requesting correction of an alleged injustice which occurred on 13 June 1986, the date of the FSM's separation. The application submitted in this case is dated 6 December 2007.
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 limitation 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 applicants failure to timely file.
3. The FSM's service records show that he initially entered the Army National Guard on 13 November 1978. The FSM was ordered to active duty for training, where he completed basic combat training and advanced individual training, and was awarded Military Occupational Specialty (MOS) 63B (Light Wheel Vehicle Mechanic). On 10 April 1979, the FSM returned to the United States Army Reserve.
4. Headquarters, 9th Infantry Division, Fort Lewis, Washington, Orders Number 066-816, dated 6 April 1981, honorably discharged the FSM in the rank of specialist/pay grade E-4 on 12 April 1981 for the purpose of immediate reenlistment.
5. The FSM's military personnel records show that he reenlisted in the Regular Army for a period of 3 years on 13 April 1981.
6. On 22 March 1984, the FSM was honorably discharged for the purpose of immediate reenlistment on 23 March 1984.
7. The FSM's record shows he received the Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal, and United States Army Safety Award.
8. The record reveals a disciplinary history which includes the FSM's acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 January 1983, for being drunk and disorderly in the Military Police Station on 5 January 1983. His punishment included forfeiture of $366.60 for 1 month, 14 days of restriction, 14 days of extra duty, and reduction to the rank of private first class/pay grade E-3.
9. The record reveals a disciplinary history which includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on 18 September 1984, for operating a vehicle while drunk on 14 September 1984, and for wrongfully drinking in the barracks on 30 July 1984. His punishment included forfeiture of $300.00 for 2 months, 14 days extra duty, and reduction to the rank of private first class/pay grade E-3.
10. The FSM's military record contains a Certificate of Promotion which shows the FSM was promoted to the rank of specialist/pay grade E-4 on 1 April 1985.
11. The FSM's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) that the FSM rank was reduced to private/pay grade E-1 on 26 May 1986.
12. DA Form 3349 (Physical Profile Board Proceedings), dated 20 May 1986, shows that the FSM was treated for infected right ring finger joint injury sustained on 22 April 1986.
13. On 23 May 1986, charges were preferred against the FSM for three specifications willfully damaging by striking with a pipe windows of some military value, wrongfully using provoking words to another enlisted Soldier, and unlawfully striking another enlisted Soldier in the mouth with his hand.
14. On 28 May 1986, 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 a discharge under other than honorable conditions, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.
15. In his request for discharge, the FSM indicated that he understood that 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 dishonorable discharge. He further acknowledged he understood that 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.
16. On 29 May 1986, the FSM's unit commander and intermediate commander concurred with the FSM's request for a chapter 10 discharge and further recommended that he receive an under other than honorable discharge.
17. On 6 June 1986, the separation authority approved the FSM's request for discharge and directed that he receive an Under Other Than Honorable Discharge Certificate.
18. The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was separated, on 13 June 1986, under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by court-martial and furnished an Under Other Than Honorable Conditions Discharge Certificate. The FSM's DD Form 214 also shows that he had a total of 2 years, 2 months, and 21 days of creditable active military service.
19. The applicant provided a summary of the FSM's military service which included his promotions, awards, disciplinary actions, and separation documents. The applicant states that she was not provided copies of the FSM's mental and medical health records from St. Louis. The applicant also stated in her summary that the FSM committed suicide in September 1986, and was buried under honorable conditions but does not understand why she and her daughter were denied Veterans Benefits.
20. The applicant provided a Statement of Death Form from the Funeral Director, dated 3 September 1986, which shows that the applicant died on 2 September 1986.
21. The applicant provided a letter from the Disability Determination Unit, dated 17 July 1986, which requested additional information from the applicant in order to process the FSM's disability claim.
22. The applicant provided a letter from the Veterans Administration, dated 26 August 1985, requesting additional supporting evidence and/or clarifying evidence or information in order to process his disability claim.
23. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge.
24. There is no evidence in the available records which shows the FSM sought assistance from his chain of command, mental health facility, or any other individual for assistance with medical issues other than to treat his infected right ring finger joint injury on 20 May 1986.
25. Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial. An undesirable discharge was normally considered appropriate.
26. Army Regulation 635-200, paragraph 3-7a, 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. A characterization of under honorable conditions may be issued only when the reason for the soldiers separation specifically allows such characterization.
27. Army Regulation 635-200, paragraph 3-7b, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the FSM's under other than honorable conditions discharge should be upgraded because he suffered from a mental health disability and that his rank should be restored to specialist/pay grade E-4.
2. There is no evidence and the applicant has not provided sufficient evidence that shows the FSM suffered from a mental health disability which was the cause of his indiscipline and subsequent separation. Therefore, this contention is without merit.
3. Although, the applicant contends the FSM was not given the opportunity of a hearing, evidence of record shows that after conferring with counsel the FSM voluntarily requested separation under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.
4. Discharge under the provisions of Chapter 10 of Army Regulation 635-200 requires an admission of guilt to the offenses charged and usually results in a discharge under other than honorable conditions.
5. The applicant contends that the FSM's rank should be restored to sergeant/pay grade E-4. Evidence of record shows that the FSM was reduced in rank based on his Article 15's and disciplinary actions which lead to his discharge.
6. The FSM's record of service included two non-judicial punishments for various offenses including for being drunk and disorderly in the Military Police Station, operating a vehicle while drunk, wrongfully drinking in the barracks, willfully damaging by striking with a pipe, windows of some military value, wrongfully using provoking words towards another enlisted Soldier, and unlawfully striking another enlisted Soldier in the mouth with his hand which resulted in reduction in rank. There is no evidence that the FSM's rank was reduced erroneously. Therefore, there is no basis to grant the applicant's request to restore the FSM's rank to specialist/pay grade E-4.
7. Based on the FSM's record of indiscipline, the FSM's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to either a general discharge or an honorable discharge.
8. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
9. The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Veterans Benefits.
10. In order to justify correction of a military record the FSM must show, 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 requirement.
11. Records show the FSM should have discovered the alleged error or injustice now under consideration on 13 June 1986. However, the applicant did not become eligible to apply until 2 September 1986 the date of the FSM's death. Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 September 1989. However, the applicant did not file within the 3-year statute of limitations and 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
_LMD__ _ _EEM___ _RNN__ 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.
_LaVerne M. Douglas_
CHAIRPERSON
INDEX
CASE ID
AR20060017589
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1986/06/13
DISCHARGE AUTHORITY
AR 635-200, ch10
DISCHARGE REASON
Chapter 10 for the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY
ActDir Mr. Schwartz
ISSUES 1.
2.
3.
4.
5.
6.
ARMY | BCMR | CY2015 | 20150005979
The applicant requests correction of his records to show he was medically discharged instead of being discharged for alcohol abuse rehabilitation failure. His DD Form 214 shows he was discharged on 18 September 1986 under the provisions of chapter 9 of Army Regulation 635-200 by reason of "alcohol abuse rehabilitation failure" with a characterization of service of general under honorable conditions. The evidence of record shows the applicant suffered from alcohol abuse.
ARMY | BCMR | CY1995 | 9511205C070209
APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement or separation. The applicants commanding officer recommended to the separation authority that the applicant be separated from the Army because of acts or patterns of misconduct, and that he receive a general discharge. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.
ARMY | BCMR | CY2002 | 2002081929C070215
The evidence also shows that in December 1986, some two years after the applicant and FSM were divorced, the FSM had the opportunity to make a RCSBP coverage election, and he chose not to do so. Thus, the Board finds insufficient evidence to show that his decision not to provide RCSBP coverage for the applicant in 1986 was the result of a mental impairment. Thus, the Board does not find the 24 June 2002 court order is a binding QDRO in regard to RCSBP annuities, and as a result it finds no...
ARMY | BCMR | CY2014 | 20140014386
The applicant requests clemency in changing his bad conduct discharge (BCD) to an honorable discharge (HD). 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. He was not given his BCD until after his conviction and sentence had been reviewed and affirmed by the ACMR.
ARMY | BCMR | CY2014 | 20140019811
BOARD DATE: 21 July 2015 DOCKET NUMBER: AR20140019811 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. On 19 January 1990, the applicant was notified by his unit commander that action was being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct commission of serious offenses. The evidence of record shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c,...
ARMY | BCMR | CY2004 | 20040001518C070208
Prior to the period of enlistment under review, the applicant served in the Army National Guard from 2 April 1977 to 6 August 1979 in military occupational specialty (MOS) 13B (Cannon Crewmember) until he was ordered to active duty on 6 August 1979 for 20 months and 11 days in pay grade E-2. The board recommended that the applicant be separated from the service because of misconduct with an UOTHC discharge. Army policy states that a UOTHC discharge is normally considered appropriate, but a...
ARMY | BCMR | CY2002 | 2002068706C070402
The applicant requests correction of military records as stated in the application to the Board and as restated herein. APPLICANT REQUESTS: The applicant, as the widow of a deceased former service member (FSM), requests that her husband’s discharge under other than honorable conditions be upgraded to honorable. However, the Board also noted the FSM’s record of service included four nonjudicial punishments for drug and alcohol related incidents.
ARMY | BCMR | CY2008 | 20080010241
The applicant requests, in effect, that his general discharge under honorable conditions be upgraded to honorable. On 5 September 1989, the applicants commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to commission of a serious offense. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
ARMY | BCMR | CY2009 | 20090009295
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. However, there is no medical evidence of record that shows the FSM had any mental condition prior to his release from military confinement on 22 December 1977.
ARMY | BCMR | CY2014 | 20140016006
On 8 November 1984, the applicant was again advanced to pay grade E-4 and he was awarded the 2nd Army Good Conduct Medal. He acknowledged that if the request was accepted he could receive a UOTHC discharge. There is no evidence to support the applicant's contention concerning the helicopter crash and associated depression problems or any evidence to support the implied conclusion that those alleged circumstances warrants the requested relief.