IN THE CASE OF:	  

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20100000220 


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 spouse of the deceased former service member (FSM), requests that the FSM's discharge be upgraded.  

2.  The applicant states, in effect, the FSM served in Vietnam and he died at the early age of 39 due to asthma.  She also states she is aware that Agent Orange, which was used in Vietnam, can cause a lot of harm.  She further states that she does not remember the FSM having this illness when they were married.  Additionally, she states that:

   a.  She and the FSM had two children.  Their son was diagnosed with Arnold Chiari malformation and he suffers from severe headaches, memory loss, and a brain malfunction that occurred at birth.  She adds that their daughter has tumors in her leg.

   b.  She requests the Army conduct a review of the FSM's records to determine if the FSM's discharge can be upgraded so that medical care may be obtained for their children and she may receive a pension.

3.  The applicant provides, in support of the application, copies of their marriage certificate and the FSM's death certificate.





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 FSM enlisted and entered active duty in the Regular Army for a period of 3 years on 14 October 1970.  Upon completion of training he was awarded military occupational specialty 76A (Supply Clerk).

3.  The FSM's DA Form 20 (Enlisted Qualification Record) shows that:

   a.  item 31 (Foreign Service) contains no entries; and

   b.  item 38 (Record of Assignments), in pertinent part, that the FSM was
en route to Vietnam on 1 October 1971; en route to Fort Carson, Colorado, on
21 October 1971; and assigned to the 19th Military Police Company, Fort Carson, Colorado, on 1 November 1971.

4.  At a special court-martial in February 1971, the FSM pled guilty to wrongfully appearing at his unit in an unclean uniform.  The FSM was found guilty of the charge and specification.  He was sentenced to confinement at hard labor for
30 days and a forfeiture of $50.00 pay per month for 1 month.  (No previous convictions were considered.)  The sentence was adjudged on 10 February 1971.  On 24 March 1971, the convening authority approved the sentence, except for the execution thereof, which was suspended for 60 days.  The sentence to confinement at hard labor for 30 days was rescinded on 24 March 1971.

5.  At a summary court-martial in April 1971, the FSM pled guilty to absenting himself from his unit on 22 March 1971 and remaining so absent until 31 March 1971.  The FSM was found guilty of the charge and specification.  He was sentenced to confinement at hard labor for 15 days.  (No previous convictions considered.)  The sentence was adjudged on 16 April 1971.  The convening authority approved the sentence and ordered it executed on 16 April 1971.
6.  At a special court-martial in May 1972, the FSM pled guilty to absenting himself from his unit on 3 April 1972 and remaining so absent until 27 April 1972.  The FSM was found guilty of the charge and specification.  He was sentenced to reduction to private (E-1), confinement at hard labor for 75 days, and a forfeiture of $75.00 pay for 3 months (two previous convictions were considered).  The sentence was adjudged on 25 May 1972.  On 8 June 1972, the convening authority approved the sentence and ordered it executed.  On 19 July 1972, the unexecuted portion of the sentence to forfeiture of pay was suspended until
25 September 1972, at which time the suspended portion was remitted.

7.  On 20 December 1972, the FSM received nonjudicial punishment (NJP) under Article15, Uniform Code of Military Justice (UCMJ), for unlawfully striking a Soldier on the head with an axe handle.  His punishment consisted of reduction to private/E-2, a forfeiture of $80.00 pay for 2 months, and 40 days of restriction (suspended for 30 days).

8.  On 18 May 1973, the FSM received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $50.00 pay.

9.  On 7 June 1973, the FSM's commander notified the FSM that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter
13 (Unfitness/Unsuitability), paragraph 13-5a(1), based on unfitness.  The FSM was also advised of his rights and of the separation procedures involved.

10.  On 12 June 1973, the FSM's commander recommended that the FSM be required to appear before a board of officers based on his recommendation that the FSM be discharged from the U.S. Army under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for frequent incidents of a discreditable nature with civil or military authorities.  The reasons for the commander's proposed action were the FSM's repeated incidents of being absent without leave (AWOL) resulting in 116 days of lost time; NJP on two occasions; and his disregard of military authority.  The commander noted that counseling related to the FSM's unsatisfactory performance had no discernable effect, the FSM's rehabilitation and/or development into a satisfactory Soldier was deemed unlikely, and the commander requested that further rehabilitative efforts be waived.

11.  On 16 July 1973, the FSM received NJP under Article 15, UCMJ, for absenting himself from his unit from 5 July to 6 July 1973.  His punishment consisted of 3 days of restriction and 3 days of extra duty.

12.  On 3 August 1973, the FSM acknowledged in a statement of counseling that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The FSM also acknowledged:

	a.  He understood that military legal counsel was available to assist him.

	b.  He was advised he may expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.

	c.  He was advised he may be ineligible for many or all benefits administered by the Veterans Administration, he may be deprived of his rights and benefits as a veteran under both Federal and state law, and he may expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.

	d.  He waived consideration of his case by a board of officers and he waived a personal appearance before a board of officers.

   e.  He waived further representation by counsel and elected not to submit statements in his own behalf.

13.  Both the FSM and his legal counsel placed their signatures on the above statement of counseling document.

14.  The intermediate commanders recommended approval of the FSM's discharge.

15.  On 22 August 1973, the major general serving as the general court-martial convening authority, and the authorized separation authority in the FSM's case, waived the rehabilitative requirements and approved the FSM's separation.  The separation authority also directed that the FSM be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

16.  The FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 4 September 1973 under the provisions of Army Regulation 635-200, chapter 13, with an  undesirable discharge.  At the time he had completed 2 years, 6 months, and 24 days of net active service and he had 117 days of lost time.

17.  A thorough review of the FSM's military personnel records revealed no evidence that the FSM served in Vietnam.

18.  The FSM's military personnel records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 25 July 1979, that shows the FSM requested that his undesirable discharge be upgraded to an honorable discharge.  The Army Discharge Review Board (ADRB), after consideration of the FSM's military records and all other available evidence, determined the FSM's discharge was proper and equitable, and voted not to change the characterization of his service.  The FSM was notified of the ADRB's decision on 19 February 1981.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unfitness whose record evidenced frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

20.  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.

21.  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 applicant contends, in effect, the FSM's undesirable discharge should be upgraded.  He served in Vietnam, Agent Orange was used in Vietnam and Agent Orange has been proven to have caused a lot of harm.  The FSM died at an early age due to asthma, and their children suffer from some illnesses she believes may entitle them to benefits and that she may also be entitled to some benefits, based on an upgrade of the FSM's discharge.  


2.  There is no evidence of record to show the FSM served in Vietnam during the period of service under review.  In addition, the applicant provides insufficient evidence in support of her contentions that the FSM served in Vietnam.  

3.  The FSM's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized the FSM's rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The evidence of record shows that during the FSM's period of military service under review he was court-martialed on three occasions, received NJP on three occasions, and he had 117 days of lost time.  Thus, the evidence of record clearly shows the FSM's record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and the FSM is not entitled to an honorable or general discharge.  In view of all of the foregoing, the applicant's contention is not sufficiently mitigating to warrant relief.  Therefore, there is no basis for upgrade of the FSM's discharge.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, there must be evidence that show, or it must satisfactorily appear, that the FSM's record is in error or unjust.  The applicant failed to submit any evidence that would satisfy this requirement.

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)                                         AR20100000220



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ABCMR Record of Proceedings (cont)                                         AR20100000220



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