IN THE CASE OF:	  

		BOARD DATE:	    11 May 2010

		DOCKET NUMBER:  AR20090018527 


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 that the discharge of her deceased spouse, a former service member (FSM), be upgraded.

2.  The applicant states, in effect, that she needs the FSM's discharge upgraded in order to get spousal benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides a letter of apology.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the FSM's discharge be upgraded.

2.  Counsel outlines his understanding of the duties, responsibilities, and the presumptions of the Army Board for Correction of Military Records (ABCMR).  Counsel requests that reasonable doubt be given to the FSM.

3.  Counsel does not provide any additional documents.

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 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 FSM's military records show that he enlisted in the Regular Army on 30 January 1980, was awarded the military occupational specialty of light wheel vehicle/power generator mechanic, and he was promoted to pay grade E-4.

3.  The FSM was counseled in writing concerning not cleaning his sleeping quarters, not making satisfactory progress on the Army Weight Control Program (AWCP), absenting himself from his place of duty, sleeping late in the morning and during lunch, a drinking problem, substandard uniform and appearance, and Army Physical Fitness Test (APFT) failure.

4.  On 22 April 1982, the FSM's commanding general approved his return to the United States for trial in civilian court for selling $35.00 worth of marijuana.

5.  On 30 July 1982, the FSM's commander notified him of his intent to recommend him for discharge under the Expeditious Discharge Program (EDP) and of his rights in conjunction with that recommendation.  In his acknowledgment, the FSM stated that he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps.  The FSM then initialed the block indicating that he consented to being discharged.

6.  The FSM's commander's recommendation was approved by the appropriate authority.  Accordingly, on 16 August 1982, the FSM was issued a general discharge under honorable conditions.

7.  Army Regulation 635-200 (Enlisted Separations) provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, then in effect, provided, in pertinent part, for the EDP.  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to be given the opportunity to consult with legal counsel.

8.  Army Regulation 635-200, paragraph 3-7a, 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 member’s 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.  

9.  Army Regulation 635-200, paragraph 3-7b, 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 Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's numerous counseling statements clearly illustrate that he either could not or would not meet acceptable military standards.  As such, his separation was and is appropriate.

2.  The FSM's numerous documented failures to meet minimum allowable military standards and several instances of failure to comply with orders to include selling marijuana clearly show his service was not of the standard to warrant an honorable discharge.  

3.  While the applicant's apology is appreciated, and her desire to obtain VA benefits is certainly understandable, the ABCMR does not change properly constituted military records solely to establish eligibility for benefits from other agencies.

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

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.



      _________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)                                         AR20090018527



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ABCMR Record of Proceedings (cont)                                         AR20090018527



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