IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007960 


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 daughter of a deceased former service member (FSM), requests an upgrade of the FSM's undesirable discharge (UD) to an honorable discharge (HD).

2.  She states the FSM's discharge is an injustice that should be corrected.  Many convictions from the Vietnam era were recently overturned due to officer misconduct and incorrect records.  One of his papers stated he was discharged under conditions other than honorable, but another states he has a UD.  She believes the records are wrong because the FSM never received the treatment he needed from the military or doctors.  He was sprayed with Agent Orange during his service, which led to his death from amyotrophic lateral sclerosis (ALS).  His ALS was 100 percent service connected, but neither he nor his family received any help.  

3.  She provides the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a DA Form 2496 (Disposition Form), a Certificate of Death, and her Certificate of Live Birth.  

CONSIDERATION OF EVIDENCE:

1.  On 25 February 1969, the FSM enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 62G (Quarrying Specialist).  

2.  He was assigned to duty in Vietnam with the 544th Engineer Company from 7 December 1969 to 29 November 1970.  

3.  While serving in Vietnam, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following offenses:

* on 1 April 1970, wrongfully appropriating a 3/4 ton truck, the property of the United States Government, operating a vehicle while drunk, and wrongfully and unlawfully leaving the scene of an accident
* on 26 May 1970, operating a vehicle in excess of the speed limit
* on 5 September 1970, willfully disobeying a lawful order to surrender his weapon and being drunk and disorderly
* on 3 November 1970, absenting himself from his unit without authority

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code, and Subsequent to Normal Date ETS) of his DA Form 20 (Enlisted Qualification Record) shows he was:

* absent without leave (AWOL) from 15 January to 5 February 1971 and from 12 to 22 February 1971
* in the hands of civil authorities from 23 February to 3 August 1971

5.  A U.S. Army Armor Center (USAARMC) Form 327 (Enlisted Personnel Confined by Civil Authorities), dated 17 June 1971, shows he was arrested in Indiana on 23 February 1971 for the offense of stealing an automobile worth more than $100.00.  Pursuant to his plea, he was found guilty of grand larceny, and he was sentenced to serve 2 years in the State Reformatory, La Grange, KY.   

6.  On 24 June 1971, he was notified that he was being considered for elimination from the Army under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) because of his conviction by a civil court and that he could be issued a UD Certificate.  He was advised of his rights.  He acknowledged receipt of the notification with his signature and waived his rights.  

7.  A DA Form 2496, dated 15 July 1971, shows he was recommended for discharge under the provisions of Army Regulation 635-206 with a UD because of his conviction by a civil court.  The recommendation noted his NJP, two periods of AWOL, and his period of confinement.  

8.  On 28 July 1971, the separation authority approved the FSM's discharge and directed he be furnished an UD Certificate.  On 3 August 1971, he was discharged accordingly with his service characterized as under conditions other than honorable.  He completed 1 year, 10 months, and 26 days of total active service with 195 days of lost time due to being AWOL and in confinement.

9.  The FSM's records document no acts of valor, significant achievement, or service warranting special recognition.

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

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  The regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.  An individual discharged for conviction by civil court normally was furnished a UD Certificate except that an HD or General Discharge (GD) Certificate could be furnished if the individual being discharged had been awarded a personal decoration, or if warranted by the particular circumstances in a given case.

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

	a.  The version in effect at the time stated the character of service associated with issuance of a UD Certificate was "under conditions other than honorable."  

   b.  Paragraph 3-7a provides that an HD 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 GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not grant requests to upgrade discharges solely on the basis that an FSM may have contracted a disease related to military service 
many years after that service had ended.  Every case is individually decided based upon its merits when an applicant requests that a discharge be changed.  The fact that a veteran has been denied benefits based on the type of discharge he or she received is not normally a factor in determining whether or not the discharge was proper and equitable.  

2.  The evidence of record shows the FSM was properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were met, and that his rights were fully protected throughout the separation process.

3.  He received NJP on four occasions, he was AWOL twice, and he was convicted of grand larceny by a civil court.  Based on this record of indiscipline, it is clear that his service was not satisfactory.  Therefore, he is not entitled to an HD or a GD.

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)                                         AR20140007960





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007960



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1