IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120002117 


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, as the mother of a deceased former service member (FSM), requests upgrade of her son's under other than honorable conditions (UOTHC) discharge to obtain a marker or headstone.

2.  The applicant states:

* her son came home having seizures that eventually cost him his life
* her son entered the military healthy and whole, but he came home a broken person

3.  The applicant provides:

* the FSM's DD Form 214 (Report of Separation from Active Duty)
* the FSM's death certificate
* her marriage certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 22 April 1976 for a period of three years.  He was assigned to Fort Sill, OK for one station unit training in military occupational specialty (MOS) 11B (Infantryman).  He was then reassigned for advanced individual training (AIT) in MOS 11B at Fort Benning, GA and he was further reassigned to Fort Leonard Wood, MO for AIT in MOS 62J (General Construction Machine Operator).  Upon successful completion of AIT, he was reassigned to Fort Campbell, KY as an Air Compressor Operator in MOS 62J.  
2.  On 20 July 1976, he was evaluated by a Medical Evaluation Board (MEB) for weakness in grip and strength due to an old stab wound to the wrist with resultant decrease in sensation to the radial side of the left hand.  The MEB recommended the FSM be separated from the service under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5.  It was also recommended the FSM be assigned a temporary profile of U3 for 90 days with no assignment requiring handling of heavy materials including weapons, no overhead work, no pull-ups or push-ups.  

3.  On 12 October 1976, an informal Physical Evaluation Board (PEB) found the FSM unfit for duty for left radial nerve, minor, paralysis of, incomplete, moderate and recommended he be separated from military service without entitlement to disability benefits.  

4.  On 11 November 1976, a formal PEB found the FSM fit for duty.  The PEB concluded the FSM's left hand condition had improved to the point that there was no limiting factor associated therewith.  Finding no physically unfitting condition, the PEB also concluded he was fit and as an exception to policy, recommended he be returned to duty.  The formal PEB was approved on 10 December 1976.

5.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on four separate occasions for the following offenses:

* wrongfully possessing marijuana on 12 August 1976
* wrongfully possessing marijuana on 21 August 1976
* failing to obey a lawful order
* being absent without leave (AWOL) from 2 to 8 August 1977

6.  On 7 April 1978, charges were preferred against him for being AWOL from 13 January to 3 April 1978.  

7.  On 7 April 1978, he underwent a separation physical examination and he was found qualified for separation with a physical profile of 111111.

8.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He submitted statements in his own behalf.  

9.  In his statement with his request for a chapter 10 discharge, he stated he joined the Army to get away from the life on the streets.  After entering the Army, he learned he didn't like following another man's wishes.  He enlisted for MOS 11B, but he was reclassified to MOS 62J for medical reasons.  He stated he had one child and he had one child on the way, but the Army had destroyed his personal life.  He was never a heavy drinker, but now he couldn't make it through the day without a drink.  He stated he was a young man full of life and he wanted his freedom to make his life have more meaning.  

10.  On 4 May 1978, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of court-martial with a UOTHC discharge.

11.  On 24 June 1978, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UOTHC discharge.  He completed 1 year, 11 months and 13 days of creditable active service and he had 86 days of lost time.  

12.  His service record does not indicate he applied to the Army Discharge Review Board 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 that regulation 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 UOTHC discharge is normally considered appropriate.

14.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, states 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 of the FSM's discharge for a marker or headstone for the FSM is acknowledged.  Unfortunately, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  

2.  The applicant's statements regarding the FSM's medical condition when he returned home are unfortunate.  However, the applicant must provide evidence to prove the FSM's discharge was rendered unjustly or in error.  

3.  The FSM's voluntary request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.  He made a statement at the time that did not indicate any health problems were causing him problems in the Army.

4.  The FSM's service record shows he received four Article 15s and he was charged with being AWOL for 80 days.  

5.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  It appears the separation authority determined the FSM's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general or fully honorable discharge.  

6.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the 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)                                         AR20120002117





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ABCMR Record of Proceedings (cont)                                         AR20120002117



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