IN THE CASE OF:	

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090010207 


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 undesirable discharge (UD) be upgraded to an honorable discharge (HD) and that the reason for his separation be changed to a Hardship Discharge.

2.  The applicant states, in effect, that he is requesting his discharge be upgraded and the reason for separation be changed based on the death of his daughter while he was serving in the Republic of Vietnam (RVN).  He states that the death of his daughter upset him in the worst way in 1970, and now almost 
40 years later her death is still unsolved.  He also states that the Army was not there for him and did not provide him any help socially or financially during this difficult time.  He states he could not even go to the Post Exchange (PX) to buy food for his family who were starving, so he had to go to work.  He claims he provided statements from members of his family and letters from the Sheriff's Department and coroner's office in support of his application.  He further requests the reason for his separation be changed to hardship so he can close this nightmare in his life while he still has a little time left.  He states his health is very bad and he is writing from the John F. Kennedy Hospital in Indio, California.

3.  The applicant provides the following documents in support of his application:  self-authored statements; VA Form 21-4138 (Statement in Support of Claim); Headquarters, U.S. Army Training Center, Request for Hardship Discharge Disapproval, dated 18 February 1971; Board for Correction of Military Records letter, dated 29 October 2007; Board Proceedings; third party statements; County of Los Angeles, Office of the Chief Medical Examiner Coroner Case Report and Medical Reports; Office of Coroner Body Full Length Posterior; Order for Release, dated 25 April 1970; Microscopic Report, dated 25 April 1970; Hospital Report Coroner's Case; Autopsy Check Sheet; Certificate of Marriage; Certificate of Live Birth; Certificate of Death with Amendment of Medical and Health Section; County of Los Angeles Sheriff's Department letter, dated 7 March 2009; and County of Los Angeles Department of Coroner letter, dated 16 February 2009.

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 record shows he was inducted into the Army of the United States and entered active duty on 18 September 1969.  It also shows he was trained in and awarded military occupational specialty (MOS) 13A (Field Artillery Basic) and that private first class (PFC) was the highest rank he attained while serving on active duty.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 21 February through 26 July 1970.  Item 38 (Record of Assignments) shows that while serving in the RVN, he was assigned to the 1st Battalion, 21st Artillery, performing duties in MOS 13A as a basic field artilleryman, and that during this assignment he received “excellent” conduct and efficiency ratings.  Item 44 (Time Lost) shows he accrued 260 days of time lost due to three separate periods of being absent without leave (AWOL) and one period of confinement between 26 July 1970 and 4 August 1971.  

4.  The applicant's Official Military Personnel File (OMPF) shows that during his tenure of assignment in the RVN his unit was awarded the Valorous Unit Award (VUA) for extraordinary heroism in action against an armed enemy of the United States while engaged in military operations involving conflict with an opposing foreign force.  His record further shows that during his active duty tenure he earned the following awards:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM) with 3 bronze service stars, VUA, RVN Gallantry Cross with Palm Unit Citation, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

5.  The applicant's OMPF also contains a denial memorandum published by the U.S. Army Training Center and Fort Ord, California, which denied his request for a hardship discharge.  The reason for denial was that the conditions that existed in the applicant's family did not conform with the regulatory standards.  It further indicated that favorable action was only possible if the evidence showed the hardship conditions were not temporary, occurred or were aggravated after entry on active duty, every reasonable effort to alleviate the hardship conditions had been tried without success, separation was the only readily available means to eliminate or alleviate the hardship conditions, or separation was the only readily available means to eliminate or alleviate the hardship conditions.  

6.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does include a DD Form 214 (Report of Separation from Active Duty) that shows he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service and that he received a discharge under other than honorable conditions (UOTHC) on            4 August 1971.  This document also confirms he completed a total of 1 year and 8 days of creditable active military service and that he accrued 309 days of time lost due to AWOL and confinement.  

7.  The applicant provides a letter from the Deputy Coroner, Los Angeles County Department of Coroner, dated 16 February 2009.  This official states that she met with the applicant concerning the death of his daughter, who died at 2 months of age on 24 April 1970.  She states the daughter's cause of death was finalized on 10 June 1970, and was believed to be sudden unexplained death of infancy, also known as interstitial pneumonitis.  She states the mode of death was listed as natural.  She states that when she met with the applicant, the autopsy results were reviewed and it became apparent that the death of this infant was suspicious.  She concludes by stating that at the request of the applicant and after review of the autopsy report the cause and circumstances of the daughter's death are being revisited and as mandated by law, this information was provided to law enforcement.  The Homicide Bureau of the Los Angeles County's Sheriff Department has opened an investigation which is ongoing. 

8.  The applicant also provides a letter from the Acting Captain, Los Angeles Sheriff's Department, Homicide Bureau.  This official states that at the request of the applicant and based on information he provided, the investigation into the death of his daughter in 1970, while he was in the RVN, has been reopened.  The information provided could possibly lead to discovering other infant deaths, which could involve the applicant's former wife.  He states the investigation is ongoing.  

9.  The applicant further provides third party statements from his brother and sister, in which they attest to the fact that prior to his assignment to the RVN and the death of his daughter, the applicant was a very loving, easy-going person.  However, after the horrific experiences of the war and then the death of his daughter, he became an angry, depressed, and distant person.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 6 of that regulation, in effect at that time, set forth the criteria and procedures and provided the authority for the separation of enlisted personnel from active military service because of dependency or hardship.  It stated, in pertinent part, that a member may be discharged or released as appropriate because of dependency or hardship when it was considered that undue and genuine dependency or hardship existed.  It further stated that a hardship exists when in circumstances not involving death or disability of a member of the enlisted person's family, other members of his family become principally dependent upon him for care or support.

12.  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 honorable discharge (HD) or GD is authorized, a UOTHC discharge is normally considered appropriate for members separated under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded and the reason for separation changed to hardship was carefully considered.  However, although his circumstances were truly unfortunate, his situation did not fit the criteria necessary to support a hardship discharge at the time.  

2.  The regulation in effect at the time provided for the discharge of a member for hardship when undue and genuine hardship existed that was not related to the death or disability of a family member.  In this case, although the death of his daughter was tragic, it alone did not support his hardship discharge at the time and the evidence of record confirms that the applicant's request for a hardship discharge was properly denied based on the fact that his situation did not meet the regulatory criteria necessary to support a hardship discharge at the time.

3.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of his discharge and that confirms he accrued 309 days of lost time.  This document carries with it a presumption of government regularity in the discharge process.  

4.  The applicant's DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

5.  However, although there presumably was no error or injustice related to the applicant's discharge at the time, his record does confirm that prior to the death of his daughter he had received "excellent" conduct and efficiency ratings and had honorably served in a combat area where he was part of a unit that was cited for gallantry in action.  Further, the first act of misconduct that contributed to his discharge did not occur until after the death of his daughter on 24 April 1970. 

6.  In view of the applicant's exemplary record of service prior to the death of his daughter, including his combat service in the RVN, and given the tragic circumstances surrounding his daughter's death that have now been discovered, it appears it would be appropriate and compassionate to support an upgrade of the applicant's discharge to a GD in the interest of equity based on his overall record of service. 

7.  However, no matter what the circumstances, his misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge and because his request for hardship discharge was properly denied based on the existing regulatory criteria, there is neither an equity nor propriety basis to support upgrading his discharge to fully honorable and/or to change the reason for his separation to hardship discharge.   
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X__  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his service was characterized as under honorable conditions instead of under other than honorable conditions and that he was issued a DD Form 257A (General, Under Honorable Conditions) instead of a DD Form 258A (Undesirable-Under Other Than Honorable Conditions) in connection with his 
4 August 1971 discharge and by providing him a correction to his DD Form 214 that reflects this change.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 
denial of so much of the application that pertains to upgrading his discharge to fully honorable and changing the narrative reason for separation to "Hardship."  



      _______ _   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)                                         AR20090010207



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ABCMR Record of Proceedings (cont)                                         AR20090010207



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