IN THE CASE OF:	  

		BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140002336 


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 an upgrade of the FSM's undesirable discharge.

2.  The applicant states:

* her husband was physically impaired prior to his enlistment – abnormal feet and purified protein derivative (PPD) (skin test for tuberculosis)
* he was mentally unstable when he requested to be discharged and at the time of his discharge – diagnosis of depression
* he was a Vietnam era veteran
* he had many difficulties during his life

3.  The applicant provides:

* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* FSM's death certificate
* their marriage license
* two medical certificates
* FSM's service personnel records
* FSM's service medical records



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.  On 7 October 1971, the FSM underwent a physical examination and was found qualified for enlistment in the Regular Army.  Item 36 (Feet) of his Standard Form 88 (Report of Medical Examination) shows he was rated normal.  In addition, he reported his present health was "good."  His medical records also show he was given a tuberculosis screening (PPD) on 4 November 1971.

3.  He enlisted in the Regular Army on 15 October 1971 for a period of 3 years.  He completed his training and was awarded military occupational specialty 76A (supplyman).

4.  Between 8 February and 2 March 1972, nonjudicial punishment was imposed against him on three occasions for failing to repair (defined as failing to go to the appointed place of duty at the time prescribed).

5.  On 3 March 1972, charges were preferred against him for larceny of private property (two specifications).  Trial by special court-martial was recommended.

6.  On 16 March 1972, he underwent a mental status evaluation.  The medical authority determined the FSM's mood was depressed and circled "Yes" for "Impression:  No significant mental illness."  The FSM was found to be mentally responsible, able to distinguish right from wrong, and able to adhere to the right.

7.  On 16 March 1972, he underwent a physical separation examination and was found qualified for separation.  On his Standard Form 88, dated 16 March 1972, the FSM reported, "To the best of my knowledge I'm in good health."

8.  After consulting with counsel, the FSM submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request, he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

9.  On 5 May 1972, the separation authority approved the FSM's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

10.  On 19 May 1972, the FSM was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He completed 7 months and 5 days of total active service.

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

12.  The applicant provided medical certificates from two physicians, dated 17 September 2013, who attest that they conducted a physical and mental examination of the FSM and diagnosed him with dementia.  The applicant also provided a medical center discharge summary, dated 23 September 2013, which shows the FSM's discharge diagnosis was major depressive disorder.  The FSM died on 12 November 2013 of cardiopulmonary arrest and end-stage renal failure.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, the 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 to an individual who was discharged for the good of the service.

	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.  Although the applicant contends that her husband was physically impaired prior to his enlistment with abnormal feet and PPD, the medical evidence shows he underwent a physical examination on 7 October 1971 and was found to be qualified for enlistment in the Regular Army.  His feet were rated normal and PPD is a skin test for tuberculosis, not a medical condition.

2.  The applicant's contention that her husband was mentally unstable at the time of his discharge was carefully considered.  However, the medical evidence shows he was found to be mentally responsible on 16 March 1972.

3.  The FSM's voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

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

5.  His brief record of service included three nonjudicial punishments and serious offenses for which a special court-martial was recommended.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the FSM an honorable or a general discharge.



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 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)                                         AR20140002336



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ABCMR Record of Proceedings (cont)                                         AR20140002336



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