IN THE CASE OF:
BOARD DATE: 21 September 2010
DOCKET NUMBER: AR20100008422
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 to honorable.
2. The applicant states the FSM suffered from dyslexia and bipolar disorder which contributed to his behavior. She notes that he never officially changed his name, but adopted his step-father's name after his mother remarried. Therefore, he served under his step-father's name.
3. The applicant provides copies of the FSM's birth certificate, death certificate and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 was inducted on 25 May 1966 and never completed training.
3. He was twice convicted by special court-martial of being absent without leave (AWOL).
4. On 1 August 1967, he was convicted by a California state court of felony vehicle theft.
5. In conjunction with his processing for discharge because of civil conviction, he was notified of his rights to be represented by counsel and to make a statement in his own behalf. He waived those rights on 24 August 1967. The separation authority approved the discharge and directed the issuance of an Undesirable Discharge Certificate.
6. On 13 September 1967, the FSM was discharged under the provisions of Army Regulation 635-206, section VI. The discharge was characterized as being under conditions other than honorable. The FSM had served 5 months and 7 days creditable service and accrued 311 days lost time.
7. There is no available evidence that he ever applied to the Army Discharge Review Board.
8. 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 for which the authorized punishment under the Uniform Code of Military Justice included confinement of 1 year 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.
9. The Manual for Courts Martial, Table of Maximum Punishments set forth the maximum punishments for offenses under the UCMJ. A punitive discharge was authorized for larceny of any motor vehicle.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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 members 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.
b. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant states the FSM, her deceased husband, suffered from dyslexia and bipolar disorder which contributed to his behavior.
2. The applicant provided neither any evidence to support her assertion nor argument to show why this factor should be considered mitigating when he was held accountable for his behavior by a civilian court of law.
3. The administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
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) AR20100008422
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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