IN THE CASE OF:	  

		BOARD DATE:	       1 JULY 2009

		DOCKET NUMBER:  AR20090003042 


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 requests, in effect, that his honorable discharge be upgraded to show he served sufficient service to allow him to receive Department of Veterans Affairs (VA) medical and dental benefits. 

2.  The applicant states, in effect, that he was discharged abruptly after receiving an injury and without cause.  He says that his military records should be reviewed for a discharge upgrade so as to obtain eligibility benefits for medical and dental care.

3.  The applicant provides does not provide any supporting evidence with his application. 

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 applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.  The available documents include the applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 23 December 1954 and a National Archives and Records Administration (NA) Form 13038 (Certification of Military Service).

3.  The applicant's DD Form 214 shows that he was inducted into the Army of the United States on 6 January 1954 from the State of Arkansas.  He completed basic combat and advanced individual training; however, item 5 (Qualifications – Specialty Number or Symbol) of his DD Form 214 does not show his military occupational specialty (MOS) or symbol.  It does contain the entry "NA."

4.  A complete unit of assignment history is not available for the Board's review.  The available DD Form 214 shows the applicant's most significant duty assignment was with Battery A, 223rd Field Artillery Battalion and that he separated at the Transfer Station at Fort Lewis, Washington. 

5.  On 23 December 1954, the applicant was honorably released from active duty and he was transferred to the U.S. Army Reserve (USAR) to complete his remaining Reserve obligation.  The facts, evidence, and circumstances that supported the applicant's separation request and administrative separation packet are not available for the Board to review.

6.  Item 8 (Reason and Authority for Separation) of the applicant's DD Form 214 shows that the reason he was released from active duty was due to dependency under the provisions of Special Regulation 615-362 (Enlisted Men – Discharge), Section III.  Item 24 (Total Net Service Completed for Pay Purposes) shows that he had completed 11 months and 18 days of active duty service.

7.  Special Regulation 615-362, in effect at that time, provided for the separation of Soldiers by reason of death or disability of a member of their family, occurring after the Soldier's enlistment or induction, and whose family members then become dependent upon the Soldier for care or support.  The Soldier must have applied for separation with evidence to support his/her claim of dependency.  The evidence was required in an affidavit form showing that the Soldier's presence at home was required to support or care for family members, that the dependency was caused by the death or disability of a family member after his/her induction or enlistment, and that the Soldier's presence to care for his family was extreme.  Dependency caused by anything other than by death or disability was not cause for discharge.

8.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) provides, in pertinent part, that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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. 

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

10.  The VA's official website, www.va.gov, provides the general eligibility criteria for veterans that must be verified by the VA to determine if a veteran is eligible for medical and dental care at one of its numerous treatment centers.  The VA reviews the veteran's characterization of service and the length of active military service to determine eligibility.  Further guidance shows that former enlisted Soldiers who started active duty before 8 September 1980 have no length of service requirement.  The website states that veterans should seek the assistance of Veterans Services Officers at local VA offices or medical centers. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded so he can obtain medical and dental benefits.  Based on the evidence of record, there is no basis for upgrading his already-honorable discharge on 23 December 1954 since he was discharged with the highest characterization of service for members of the Armed Forces. 

2.  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 that requirement.

3.  While the applicant's military records are not available for review, the applicant has not provided any evidence which would show that he served on active duty longer than what is reflected on his DD Form 214.

4.  In view of the foregoing, the applicant's discharge was properly and equitability administered per the regulatory guidance in effect at the time for Soldiers with dependency issues due to the death or disability of a family member.

5.  The ABCMR does not correct properly issued discharges solely for the purpose of establishing eligibility for other programs or benefits, specifically VA medical and dental benefits.  As such, the applicant is advised to contact his local VA office, medical center, or go on-line to initiate his VA eligibility application.

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.



      _________XXX_____________
               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)                                         AR20090003042



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ABCMR Record of Proceedings (cont)                                         AR20090003042



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