IN THE CASE OF:	  

		BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140005411 


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 sister of a deceased former service member (FSM), requests, in effect, correction of the FSM’s military records to show his under other than honorable conditions (UOTHC) discharge upgraded.
   
2.  The applicant states she is trying to obtain a grave marker for the FSM from the Department of Veterans Affairs (VA).  The FSM had no misconduct, but only wanted to spend some time with his older brother Jim who had returned from the Republic of Vietnam.

3.  The applicant provides copies of:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* FSM’s Birth Certificate
* Applicant’s Birth Certificate
* FSM’s Death Certificate
* Federal Benefits for Veterans, page 70, Eligibility for burial and memorial benefits



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 29 September 1970, the FSM enlisted in the Regular Army.  He completed his initial training as a stock control and accountability specialist.

3.  On 20 March 1971, the FSM was assigned to Company C, Headquarters Command, Fort Leonard Wood, MO.

	a.  He was absent without leave (AWOL) for 1 day during 26-27 April 1971.

	b.  He was AWOL for 8 days from 3 to 10 May 1971 and accepted nonjudicial punishment for his misconduct.

4.  On 30 July 1971, the FSM departed Fort Leonard Wood, MO for duty in the Republic of Korea (ROK).

	a.  On 12 September 1971, he was assigned to the 30th Ordnance Company.

	b.  On 28 October 1971, he was advanced to specialist four, pay grade E-4.

5.  The discharge packet is missing from the FSM’s military records.  However, his DD Form 214 shows that he was administratively discharged on 9 August 1972, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  His service was characterized as UOTHC.  He completed 1 year, 8 months, and 6 days of creditable active duty and had 66 days of lost time.

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



7.  Army Regulation 635-200 (Personnel Separations):

	a.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  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.  

8.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM’s military records should be corrected so she may obtain a grave marker from the VA.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The available records do not contain any evidence of the misconduct that led to the FSM's discharge but it does appear to be related to his AWOL.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support her contention that the FSM’s discharge was unjust.  AWOL from the Army is misconduct.

4.  The applicant's desire to obtain a VA grave marker is not justification for an upgrade of the FSM’s discharge.

5.  In view of the foregoing, the applicant's request should be denied.



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)                                         AR20110020309



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ABCMR Record of Proceedings (cont)                                         AR20140005411



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