IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110020965 


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 FSM'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the spouse and legal curator of a former service member (FSM), requests his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that the FSM:

* needs his discharge upgraded to obtain Department of Veterans Affairs (DVA) benefits
* suffers in mental and physical anguish
* has abnormalities as a result of the Vietnam War
* has a skin disease caused by Agent Orange exposure
* has an eating disorder

3.  The applicant provides:

* the FSM’s DD Form 214 (Report of Separation from the Armed Forces of the United States) 
* a letter of support 
* a State of Louisiana Certificate of Marriage
* a State of North Carolina Certificate of birth
* a Social Security Administration (SSA) Form 787 (Physician's/Medical Officer's Statement of Patient's Capability to Manage Benefits)
* State of Louisiana Appointment of Administrator



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 in the Regular Army on 10 July 1974.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  On 8 November 1974, the FSM was assigned to A Company, 25th Signal Battalion, 35th Signal Group, Fort Bragg, NC, where he performed duties as a pole lineman assistant.

4.  There is no evidence in the FSM's military service records that shows he served in the Republic of Vietnam.

5.  A DD Form 458 (Charge Sheet), dated 18 December 1975, shows charges were preferred against the FSM for being absent without leave (AWOL) for the period 17 March 1975 through 17 December 1975.

6.  On 18 December 1975 after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

7.  The FSM indicated in his request he understood that he could be discharged under other than honorable conditions and issued an Under Other than Honorable Conditions Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the DVA, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to submit a statement in his own behalf.
8.  The FSM stated that he no longer desired to be in the Army.  His unit did not live up to the standards his recruiter and other military personnel told him it would be.  

9.  On 10 January 1976, the appropriate authority approved his request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He directed that the FSM be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 16 June 1976, he was discharged with a characterization of service of under other than honorable conditions.  He completed a total of 1 year, 2 months, and 7 days of creditable active service with 270 days of lost time.

10.  The FSM’s medical records are unavailable for review.

11.  There is no evidence in the available records which indicates the FSM served in an area that was sprayed with Agent Orange or that he was treated for it during his service in the military.

12.  The FSM applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 6 August 1981, the ADRB reviewed and denied his appeal.  The ADRB determined his discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

13.  The applicant provided an SSA Form 787, dated 7 August 2010, that shows the FSM was examined by a medical doctor.  The medical doctor stated "Patient has suffered severe brain injury.  Currently he is unresponsive and vent dependent."  The FSM had a poor prognosis for recovery of mental function.

14.  The applicant provided a letter of support, dated 9 December 2010.  The applicant states that she and the FSM have been married since 1996.  Since Hurricane Katrina they have been trying to rebuild their lives.  In July 2010, the FSM was diagnosed with a brain aneurysm.  The applicant states medical care that is provided by the state is based on their income.

15.  They did not have insurance and the FSM's surgery had to be delayed until financial arrangements were established.  The FSM’s surgeries was successful but after he returned to the primary hospital, follow through was lacking and the FSM lost oxygen to the brain and suffered anatomic brain injury.  The applicant states if the FSM’s discharge is corrected to a general discharge or better she can seek medical and financial assistance through the DVA.  The applicant states her husband is her life.  She loves him very much and she would like to know she has done the best she could to provide him with a chance at life by seeking proper medical care in his time of need.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally given.

17.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for upgrade the FSM's undesirable discharge to a general discharge was carefully considered and it was determined there is insufficient evidence to support her request.  It is unfortunate that the FSM suffers from brain damage and various other medical issues that are life threatening.  However, the ABCMR does not correct records solely for the purpose of obtaining eligibility for DVA benefits.

2.  The applicant contends that the FSM has a skin disease caused by exposure to Agent Orange.  There is no evidence in the FSM's military service records that shows he served in an area that was sprayed with Agent Orange or that he was treated for Agent Orange exposure during his service in the military.

3.  The evidence of record shows the FSM was properly and equitably discharged in accordance with the regulations in effect at the time.  Absent evidence to the contrary, it is determined that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  The FSM's military service record shows he had one lengthy AWOL period.  He completed 1 year, 2 months, and 7 days of creditable active service with a total of 270 days of time lost.  Based on these facts the FSM’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general discharge.
5.  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)                                         AR20110020965





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110020965



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1