PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:          24 October 2000                
	DOCKET NUMBER:   AR2000041771

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that the former service member’s (FSM) undesirable discharge (UD) be upgraded to a fully honorable discharge.

3.  The applicant states, in effect, that she is the spouse of the deceased FSM.  She believes that the UD that the FSM received was too harsh, due to the fact that his job performance at the time of the discharge was commendable and that the reason for his discharge had nothing to do with his job performance.  Further, the applicant feels that as a surviving spouse she should be entitled to benefits from the Department of Veterans Administration (DVA).  She submits a statement written in support of her request, a statement that the FSM submitted during the discharge process, a certificate of death (15 August 1998) from the Alabama Center for Health Statistics, a copy of the FSM’s DD Form 214 (Report of Separation from Active Duty), a Noncommissioned Officer Evaluation Report (NCOER) and three performance/qualifications statements dated 5, 6, and 8 December 1975, written by members of the FSM’s chain of command. These statements show that many members in the FSM’s chain of command felt that he demonstrated sound leadership qualities, competence, enthusiasm and professionalism. 

4.  Prior to the period of enlistment under review, the FSM served honorably in the Regular Army (RA) from 8 September 1964-6 June 1967 and from 7 June 
1967-16 September 1970.  He was promoted to sergeant/pay grade E-5 on 
13 September 1966.  He served two tours in the Republic of Vietnam (RVN) from 
24 July 1966-23 July 1967 and from 3 October 1968-28 October 1970.

5.  On 17 September 1970, he reenlisted in the RA for 6 years and his previous military occupational specialty (MOS) 57H (Cargo Handler) and pay grade E-5, which was the highest pay grade that he achieved.  He was serving in Thailand at the time. 

6.  The separation documents that the applicant submitted shows that on 31 October 1975, the FSM’s commander notified him that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  However, specific facts and circumstances concerning the basis for the discharge action for unfitness are not available. 

7.  On 19 November 1975, the FSM received a physical evaluation as a result of the chapter process.

8.  The NCOER that the applicant submitted is incomplete, the front page of the report is missing.  However, on the backside of the report, both the rater and the endorser stated that the FSM demonstrated outstanding leadership ability.  He used sound judgement; he was knowledgeable; he was responsible; and he demonstrated the ability to handle positions of greater responsibility.  This rating is dated in November 1975.

9.  On 8 December 1975, the FSM acknowledged notification of the commander’s intent to separate him.  He consulted with legal counsel concerning the basis for the contemplated separation action and the rights available to him.  He waived the right to have his case considered by a board of officers.  He authenticated a statement that indicated he understood the ramifications of receiving a UD.  The FSM requested in a statement submitted in his own behalf that he be allowed to remain on active duty until the expiration of his term of service.  He stated that he had served in the military for 
11 years and that he had never been in any trouble.  He stated that he was having personal problems that had affected his attitude. 

10.  On an unknown date, the appropriate authority approved the separation recommendation and directed the issuance of a UD, and reduced him to pay grade E-1.

11.  On 16 March 1976, the applicant was discharged under the provisions of AR 
635-200, chapter 13, for unfitness, Separation Program Designator (SPD) JLG (Chronic Default of Payment of Legal Debt) with a UD.  He had completed 5 years and 6 months of active military service on the enlistment under review and he had completed 6 years and 9 days of prior active military service.

12.  On the very same day he requested an explanation of the narrative reason for his separation from the military.  He received a response in writing from the Department of the Army, Headquarters, US Army Transfer Point, Oakland, California stating that he was being separated for unfitness due to chronic default of payment of legal debt.

13.  He was awarded the Army Commendation Medal, the Good Conduct Medal (three awards), the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal with 60 Device and the Vietnam Cross of Gallantry with Palm (two awards).  His records also contain two letters of appreciation and a letter of commendation from prior periods of service.

14.  The available records contains no recorded indiciplines and no counseling statements or letters of indebtedness.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member is unfit or suitable for further service due to an established pattern showing failure to pay just debts.  A UD was generally considered appropriate.

CONCLUSIONS:

1.  The FSM’s administrative separation on 16 March 1976 was accomplished in accordance with regulations then in effect. 

2.  The FSM had no recorded indisciplines, other than an apparent record of chronic default of payment of his legal debts.  His overall service record was highly satisfactory to include two tours of duty in the RVN.  Therefore, the Board, while not condoning his apparent failure to pay his just debts, concludes that a general discharge (GD) is warranted and the FSM is entitled to have his rank and pay grade restored to sergeant/pay grade E-5, with a date of rank from 13 September 1966.  

3.  However, there is no basis to change the FSM’s reason for discharge.

4.  Entitlement to veteran’s benefits is not a matter under the purview of this Board, but rests with the DVA.  The applicant should work with the DVA to determine her eligibility for veteran’s benefits based on the FSM’s military service.

5.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all Department of the Army records related to this case be corrected:

	a.  by showing that the UD of the individual concerned on 16 March 1976, is void and without force or effect; 

b.  by showing that the FSM was discharged with a GD under honorable conditions, as a sergeant, in pay grade E-5, with a date of rank of 13 September 1966, in accordance with chapter 13, Army Regulation 635-200, for unfitness, SPD JLG; and

c.  by showing that he was issued a General Discharge Certificate on 16 March 1976, vice the Undesirable Discharge Certificate he was issued on that date.

2.  That so much of the application as in excess of the foregoing is denied.

BOARD VOTE:  

__mkp___  __esc__  __jtm____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Margaret K. Patterson__
		        CHAIRPERSON

INDEX

CASE ID	AR2000041771	
SUFFIX		
RECON		
DATE BOARDED	20001024	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19760316	
DISCHARGE AUTHORITY	AR 635-200, Chapter 13	
DISCHARGE REASON	55.00	
BOARD DECISION	(PARTIAL GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	144.5500	
2.		
3.		
4.		
5.		
6.