IN THE CASE OF:	  

		BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120010589 


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 her late husband's undesirable discharge to an honorable discharge.

2.  The applicant states she is not eligible for any benefits due to her late husband's discharge. 

3.  The applicant provides:

* The FSM's Certificate of Death
* Their Marriage Certificate
* Their son's Certificate of Live Birth
* The FSM's DD Form 214 (Report of Separation from Active Duty) 

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 28 December 1973 for a period of 
3 years.  He completed training and he was awarded military occupational specialty 72E (telecommunications specialist).

3.  In March 1974, the FSM accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty.

4.  In April 1975, the FSM accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) from 7 April 1975 to 14 April 1975.

5.  On 25 November 1975, the FSM was convicted by a special court-martial of being AWOL from 2 June 1975 to 19 August 1975.  He was sentenced to reduction to private (PV1)/E-1; forfeiture of pay for 6 months; and restriction and hard labor without confinement for 60 days.  On 12 December 1975, the convening authority approved the sentence.

6.  In March 1976, the FSM accepted NJP under Article 15, UCMJ for being AWOL from 1 December 1975 to 22 February 1976.

7.  On 16 March 1976, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.

8.  On 25 March 1976, after consulting with counsel and being advised of the recommended separation for misconduct, the FSM waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

9.  On 8 April 1976, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for misconduct due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander cited the FSM's lack of desire to act as a contributing member of the military service as reflected in his record of NJPs and conviction by a special court-martial.


10.  On 2 June 1976, the separation authority approved the FSM's recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.

11.  On 4 June 1976, the FSM was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 10 months, and
2 days of total active service with 215 days of time lost.

12.  There is no indication that the applicant 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 separation of enlisted personnel.

	a.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.

	b.  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.

	c.  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 FSM's record of service included three NJPs, one special court-martial conviction, and 215 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

3.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade her late husband's undesirable discharge to either an honorable or a general discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of attaining eligibility for veterans or medical benefits.  Every case is individually decided based upon its merits when an individual requests a change in discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20120010589



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ABCMR Record of Proceedings (cont)                                         AR20120010589



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