IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100009208 


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 former service member (FSM), requests the FSM's undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that her deceased husband initially applied to the Army Board for Correction of Military Records (ABCMR) on 1 July 2009.  However, his military personnel records were not available and his application was returned without action.  In his initial request, the FSM stated he was absent without leave (AWOL) for a period less than 180 days and that his type of discharge does not fall under the provisions of U.S. Code, Title 38, Section 3.12.  

3.  The applicant states she applied to the Department of Veterans Affairs (VA) for a Government headstone and burial marker for her husband's grave.  A handwritten note shows that this request to the VA will be denied unless a DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) showing the FSM was honorably discharged is provided to the VA.   

4.  The applicant provides the following documents: 

   a.  a copy of the FSM's DD Form  214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 13 April 1971; 
   
   b.  Certificate of Death showing the applicant as the spouse of the FSM at the time of his death;
   
   c.  VA Statement in Support of Claim, dated 28 April 2009; and
   d.  VA Administrative Decision, dated 11 June 2009.
   
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 10 January 1969 for 3 years.  He completed the training requirements and he was awarded military occupational specialty 63C (Track Vehicle Mechanic).  The FSM's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 21 June 1969 to 20 June 1970.  His record is void of documentary evidence showing awards or decorations for acts of valor or meritorious achievement.  

2.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separation occasions.  The NJPs were for absenting himself from his place of duty on 18 February 1970 and on 5 October through the evening of 6 October 1970, and for being absent without leave (AWOL) from 2 January to 7 January 1971.

3.  The applicant was tried and convicted by a special court-martial of signing an official statement with intent to deceive and for stealing a U.S. Treasury check valued at $176.00.  His initial sentence was confinement at hard labor for 5 months and a forfeiture of $60.00 for 5 months.  The convening authority reduced the applicant's court-martial sentence to confinement for 90 days and a forfeiture of $50 for 4 months. 

4.  On 13 April 1971, the special court-martial convening authority remitted the applicant's court-martial sentence to allow him to be discharged from the service under the provisions of Army Regulation 635-212 (Unfitness). 

5.  The applicant's discharge packet is not available for the Board's review. 

6.  On 13 April 1971, the applicant was separated with an undesirable discharge.  His DD Form 214 shows he was separated under the provisions of Army Regulation 635-212 for unfitness.  He had completed 2 years, 1 month, and 16 days of creditable active service with 48 days of lost time under Title 10, U.S. Code, section 972.  

7.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

8.  The FSM died on 23 July 2009 from small cell lung cancer.  He died in the Memphis VA Medical Center. 
9.  In support of the FSM's application, the applicant provided a statement the FSM provided to the VA.  The FSM stated, in effect, he had difficulty adjusting after he returned from his tour of duty in the Republic of Vietnam, that he had anger management problems, and his company commander talked to Soldiers disrespectfully.  The FSM indicated he was involved in an altercation, he was sent to behavioral health for evaluation, and he was jailed for 2 months before being discharged from the service.

10.  The applicant also provided as supporting documentary evidence a VA decision concerning the FSM's VA healthcare benefits.  This decision states the VA determined the FSM's military service for the period 10 January 1969 through 13 April 1971 was "HONORABLE FOR VA PURPOSES.  THE PERIOD OF SERVICE UPON WHICH THAT DISCHARGE WAS BASED, DOES QUALIFY YOU FOR THE BENEFIT FOR WHICH YOU APPLIED, OR FOR OTHER GRATUITIOUS BENEFITS UNDER LAWS ADMINISTERED BY THE VA."  The VA decision document continues by stating, "UPON REVIEWING THE FACTS AND CIRCUMSTANCES, YOU WAS (were) AWOL FOR LESS THAN A PERIOD OF 180 CONSECUTIVE DAYS, WHICH DOES NOT FALL UNDER THE STATUS OF 38 CFR 3.12."  

11.  In the VA administrative decision, the VA determined the applicant was eligible for healthcare benefits under Chapter 17, Title 38, U.S. Code for "ANY DISABILITIES DETERMINED TO BE SERVICE-CONNECTED AND ASSOCIATED WITH THE PERIOD OF SERVICE FROM JANUARY 10, 1969 TO APRIL 13, 1971 . . . SERVICMAN RECEIVED PUNISHMENT ON NUMEROUS OCCASIONS FOR MISCONDUCT, SHIRKING DUTY AND AWOL.  HE WAS COUNSELED ON SEVERAL OCCASIONS, BUT HIS PATTERN OF BEHAVIOR CONTINUED UNCHANGED.  A REPORT OF PSYCHIATRIC EXAMINATION SHOWS HE WAS MENTALLY REPSONSIBLE TO DISTINGUISH RIGHT FROM WRONG AND TO ADHERE TO THE RIGHT.  HE WAS DISCHARGED FOR REASON OF UNFITNESS."

12.  References:

	a.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members were subject to separation for unfitness based on frequent incidents of a discreditable nature with civil or military authorities; for drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; and for an established pattern of shirking.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop as a satisfactory Soldier, further effort was unlikely to succeed.  An undesirable discharge was normally considered appropriate.  
	b.  Army Regulation 635-212 also states, in pertinent part, that in the processing of an administrative discharge, unit commanders would notify Soldiers that they were being considered for separation and the type of discharge that they could expect to receive.  The Soldier would have sought legal counsel, which includes advice that they could submit statements in their behalf and request representation by an appointed counsel or a civilian counsel at their own expense.  Soldiers would acknowledge that they understood that they could expect to encounter substantial prejudice in civilian life with a general discharge or undesirable discharge.  In addition, they acknowledge that they can be deprived of many or all Army benefits; that they could be ineligible for many or all benefits administered by the VA; and that they could be deprived of their rights and benefits as a Veteran under both Federal and state law. 

	c.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	d.  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.

	e.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begin its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	f.  Title 38, United States Code, section 3.12, permits the VA to review and determine a Veteran's character of a discharge and to determine if it will pay pension benefits, compensation benefits, and dependency and indemnity compensation to Veteran's and their dependents.  Within this section, pension benefits, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 

     g.  Title 38, United States Code, section 3.360, permits the VA to determine health-care and pay related benefits to certain former service members with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty.  With certain exceptions, such benefits shall be furnished for any disability incurred or aggravated during a period of service terminated by a discharge under other than honorable conditions.  Specifically, they may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in §3.12(c) applies.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's undesirable discharge should be upgraded to honorable so the VA will issue a headstone or burial marker for the FSM.  

2.  While the VA acting under its regulatory authority determined it would provide healthcare benefits to the FSM for a period of his service it determined was honorable, the FSM's record shows he was discharged with an undesirable discharge.  Although his separation package was not available, it is presumed that the Army's administrative processing of his discharge is correct. The FSM's service record did show he accepted punishment under the provisions of NJP on three occasions and that he was convicted by a special court-martial upon his return from serving in the Republic of Vietnam.  Clearly, by review of the FSM's service record, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the FSM's service was determined to be unfit and he is not entitled to a general or an honorable discharge.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate considering all the known facts of the case.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In addition, the ABCMR does not upgrade a properly issued discharge solely for the purpose of establishing benefit eligibility for Federal or state agencies.



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)                                         AR20100009208



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ABCMR Record of Proceedings (cont)                                         AR20100009208



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