BOARD DATE: 8 June 2010
DOCKET NUMBER: AR20090020218
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, the widow of a deceased former service member (FSM), requests upgrade of the FSM's undesirable discharge to a general discharge.
2. The applicant states that her husband died from type 2 diabetes which was from his Vietnam service. However, she can't get any veterans' benefits because of the type of discharge her husband was given.
3. The applicant provides her Marriage Certificate and her husband's Certificate of Death.
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 applicants 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 applicants 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 7 May 1963, he was awarded the military occupational specialty of supply specialist and later light weapons infantryman, he served in Alaska from October 1963 to April 1965, and he was promoted to pay grade E-3.
3. The FSM accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on three occasions for appearing in the snack bar with an Air Force parka over his fatigues, being absent without leave (AWOL) from 30 August to 2 September 1964, and breaking restriction.
4. On 9 November 1964, the District Magistrate Court of the State of Alaska convicted the FSM of a minor in possession [of a motor vehicle without owner's consent] and joyriding. He was sentenced to 6 months imprisonment (3 months suspended for 1 year) and a $50.00 fine.
5. On 20 November 1964, the FSM's commander forwarded his recommendation for discharge under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) by reason of a civil conviction. He recommended issuance of an Undesirable Discharge Certificate.
6. On 31 December 1964, the appropriate authority waived the requirement for a board of officers and directed the FSM's discharge with an Undesirable Discharge Certificate.
7. Accordingly, on 20 January 1965, the applicant was discharged accordingly.
8. On 8 September 1978, the Army Discharge Review Board denied the FSM's request to upgrade his discharge.
9. Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense and sentenced to confinement for more than 6 months, or for which the authorized punishment under the Manual for Court Martial included confinement of 6 months or more was to be considered for elimination. The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time. When such separation was warranted an undesirable discharge was considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The FSM accepted NJP on three occasions and he was sentenced to
6 months confinement by a civil court action. Such a record certainly warranted an undesirable discharge.
2. There is no evidence that the FSM's rights were not protected throughout the discharge proceedings.
3. While it is regrettable that the FSM died of complications of type 2 diabetes, he did not get diabetes during service in Vietnam since he was never stationed in Vietnam. He was stationed in Alaska.
4. In view of the foregoing, there is no basis for granting the applicant's requested relief.
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) AR20090020218
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