BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100011192 


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 the FSM died from Hepatitis C, which she believes he contracted while in the Republic of Vietnam (RVN).  She further believes she may be entitled to benefits based on the FSM's service should the Army see fit to upgrade his discharge.

3.  The applicant provides a copy of the following documents:

* the FSM's DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 20 April 1970 and 
10 September 1971
* the FSM'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 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 record shows he enlisted in the Regular Army (RA) on 6 May 1969 for a period of 3 years.  He served until he was honorably discharged on 20 April 1970 for the purpose of immediate reenlistment.  He reenlisted in the RA on
21 April 1970 for a period of 3 years.

3.  Item 30 (Remarks) of the FSM's DD Form 214 for the period ending
10 September 1971 shows he served in the RVN from 20 June 1970 through
19 June 1971.

4.  The FSM received nonjudicial punish (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following offenses:

   a.  on 17 March 1970 for being absent without leave (AWOL) on 16 March 1970, for failing to obey a lawful order, and for failing to go at the time prescribed to his appointed place of duty; and 

   b.  on 11 June 1971 for being AWOL from 21 May to 10 June 1971

5.  The applicant’s record contains a copy of Headquarters, 1st Battalion, 30th Field Artillery, 1st Cavalry Division, (Airmobile), APO San Francisco, Special Court-Martial (SPCM) Order Number 2, dated 15 December 1970, which shows he was charged with the following offenses:

* Violation of Article 89, UCMJ, for being disrespectful towards a commissioned officer  
* Violation of Article 90, UCMJ, for failing to obey a lawful command
* Violation of Article 92, UCMJ, for failing to obey a lawful general order

6.  The FSM entered a plea of not guilty to the charges; however, he was found guilty of all charges.

7.  The applicant's record contains a copy of a DD Form 458 (Charge Sheet), dated 10 July 1971, that shows that the FSM was charged under Article 86, UCMJ for being AWOL as of 11 June 1971.

8.  The FSM's record contains a copy of DA Form 3545 (Deserter Wanted by the Armed Forces) which shows he was dropped from the rolls of the Army as of
15 June 1971.

9.  The specific facts and circumstances surrounding the FSM’s discharge processing are not available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for the applicant’s discharge on 10 September 1971.  The DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, under separation program number (SPN) 246 [Discharge for the good of the service - in lieu of court-martial], with issuance of a DD Form 258A (Undesirable Discharge Certificate).  This DD Form 214 further shows the FSM completed a total of
2 years, 1 month, and 5 days of active service.  It also shows the FSM had
90 days of time lost due to AWOL.

10.  The FSM's Certificate of Death shows he died on 25 August 2004 from kidney failure due to liver failure (cirrhosis) and Hepatitis C.

11.  The FSM's Official Military Personnel File (OMPF) does not contain any documents relating to any medical problems or treatment.  Additionally, his medical records are not available for review.

12.  There is no indication that the FSM applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 

14.  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 medical records were not available for review and the applicant provided no medical records that show the FSM's Hepatitis C was contracted in the RVN.

2.  The FSM's record is void of the facts and circumstances that led to his separation.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, with issuance of an Undesirable Discharge Certificate.  He also had 90 days of time lost due to being AWOL.  Therefore, the FSM's military service does not warrant an upgrade of his discharge. 

3.  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)                                         AR20100011192



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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