IN THE CASE OF:	

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140017484 


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 requests the records of her deceased husband, a former service member (FSM), be corrected to show he had an in line of duty upper respiratory infection.  

2.  The applicant states the FSM did have an upper respiratory infection, Line of Duty: Yes, as shown on the DA Form 3647-1 (Clinical Record Cover Sheet), dated 19 December 1972.  He was admitted to the hospital on 1 September 1972.  The "medical board recommendation form findings" does not reflect that.  After his discharge from the Army and until he passed, he continued to have respiratory problems.  As his spouse of 34 years, she personally knew these problems never ceased.  He was "denied service-connection due to no record of respiratory problems in the Army."  

3.  The applicant provides:

* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* FSM's death certificate
* DA Form 3647-1
* PF Form 346 (Request for Admission)
* certified copy of marriage record




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's records show he enlisted in the Regular Army on 18 August 1972 and he held military occupational specialty 64C (Motor Transport Operator).  He served in Germany from 8 February 1973 to 13 July 1973. 

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for: 

* 30 October 1972, leaving his appointed place of duty without authority 
* 2 April 1973, twice failing to go at the time prescribed to his appointed place of duty 
* 5 April 1973, willfully disobeying a lawful order 
* 4 June 1973, being absent from his place of duty on 1 June 1973 and willfully disobeying a lawful order 

4.  On an unknown date, the FSM underwent a mental status evaluation.  The military Medical Corps officer found him mentally responsible with no significant mental illness.  He met retention standards prescribed in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and was cleared for administrative actions by his chain of command (emphasis added). 

5.  On 25 June 1973, the FSM's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), by reason of unsuitability citing the applicant's apathy (lack of appropriate interest), defective attitude, and inability to expend effort constructively.  

6.  On 25 June 1973, the FSM acknowledged receipt of the separation memorandum.  He consulted with legal counsel and he was advised of the basis for the contemplated separation for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.  He acknowledged:

* he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him
* as a result of the issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws

7.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unsuitability with an under honorable conditions (general) discharge. The immediate commander stated the: 

* the FSM displayed a total disregard for regulations directives and policy; he was a bad influence upon other members of the unit
* the FSM possessed no potential for further retention as he was unsuitable for continued military service
* the FSM had caused the unit to suffer by his constant disregard for rules and regulations and he created a negative attitude toward the Army
* his continued retention would only create additional serious disciplinary problems and embarrassment to the military service

8.  On 29 June 1973, the FSM's intermediate commander recommended approval of the discharge with the issuance of a general discharge. 

9.  On 5 July 1973, consistent with the chain of command's recommendations, the separation authority approved the FSM’s discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed he be furnished a General Discharge Certificate.  The FSM was accordingly discharged on 13 July 1973.

10.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-212 by reason of unsuitability with a separation program number (SPN) of 46A (Unsuitability, apathy, defective attitude and inability to expend effort constructively).  His character of service was under honorable conditions (general).  He completed 10 months and 26 days of total active service.

11.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 
12.  The applicant's medical records are not available for review with this case.  The applicant provides a marriage record showing she and the FSM were married on 28 September 1978 and the FSM's death certificate shows he died on 8 October 2012 due to acute respiratory failure and related conditions.  She also provides: 

	a.  DA Form 3647-1, dated 19 December 1972, shows the FSM was diagnosed with an "upper respiratory infection, Line of Duty: Yes."  The disposition was to return him to duty. 

	b.  FP Form 346, dated 1 September 1972 shows he was diagnosed with bronchitis and referred for admission. 

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an inddeividual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR decides cases on the evidence of record.  It is not an investigative body.  The ABCMR 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's medical records are not available for review with this case.  Based on the two documents provided by the applicant, the FSM was referred by an admitting officer for admission in September 1972 due to what appears to have been bronchitis and that he was diagnosed with an upper respiratory infection in December 1972.  His disposition was to return to duty. 

2.  Following his return to duty, he was reassigned to Germany where he exhibited substandard/unsatisfactory performance.  He appears to have been provided with multiple counseling and/or opportunities for rehabilitation by various members of his chain of command; however, he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

3.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

4.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.   

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  Absent convincing, independent, and verifiable evidence to the contrary, it is presumed that his military service records including the available medical records were correct at the time and there is an insufficient evidentiary basis to change them. 

6.  The ABCMR corrects military records and even when it does so, the Board does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In any case, VA issues are not within the purview of this Board.  Issues related to VA disability compensation, eligibility, and entitlement should be addressed to the VA.  The applicant is advised to contact a local VA office, which can best advise her on her eligibility for VA benefits available to the widows of former service members. 

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)                                         AR20140017484



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ABCMR Record of Proceedings (cont)                                         AR20140017484



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