BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150006204 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, a legal representative of a former service member (FSM), requests, in effect, an upgrade of the FSM's undesirable discharge (UD). 2. The applicant states, in effect, a review of the FSM's military service records will determine if he is eligible for benefits from the Department of Veterans Affairs (VA). The FSM has stated the military police came to get him, but he is unsure if he was arrested by the Army. He was discharged from the Army on 2 January 1974. The FSM is bed bound and has had several strokes. She is his legal representative and health care provider. 3. The applicant provides copies of the following: * two letters from the Social Security Administration (SSA) * Health Care Proxy * SSA Form 787 (Physician/Medical Officer's Statement of Patients Capability to Management Benefits) (front page) 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 the cases 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. 2. The FSM enlisted in the Regular Army on 26 June 1972. He was advanced to pay grade E-2 on 30 August 1972. He did not complete advanced individual training for award of a military occupational specialty. 3. He was reported absent without leave (AWOL) on 29 November 1972 and was returned to military control on 1 December 1972. 4. He was again reported AWOL on 4 December 1972 and was dropped from the rolls (DFR) of his organization on 10 January 1973. 5. On 21 February 1973, a DD Form 458 (Charge Sheet) was completed by the Commander, Personnel Control Facility, Fort Dix, NJ. The FSM was charged with two specifications of being AWOL from 29 November through 1 December 1972 and 4 December 1972 through 16 February 1973. Court-martial charges were preferred against him on the same day. 6. He was reported AWOL on 26 February 1973 and was DFR of his organization on the same day. He was apprehended by the Federal Bureau of Investigations and returned to military control on 9 November 1973. 7. On 13 November 1973, a DD Form 458 was completed by the Commander, Personnel Control Facility, Fort Dix, NJ. The FSM was charged with three specifications of being AWOL from 29 November through 1 December 1972, 4 December 1972 through 16 February 1973, and 26 February through 9 November 1973. Court-martial charges were preferred against him on the same day. 8. On 16 November 1973, after consulting with counsel, the FSM requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. He acknowledged his periods of AWOL and indicated he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person. He also acknowledged the imposition of a UD and the result of the issuance of such a discharge. He waived his rights and elected not to submit a statement on his own behalf. 9. On 1 December 1973, the separation authority approved the FSM's request and directed the issuance of a UD Certificate and reduction to pay grade E-1. 10. He was discharged accordingly on 2 January 1974. He was credited with completing 7 months and 10 days of net active service and 332 days of time lost. He was issued an UD Certificate. 11. The applicant provided copies of the following: * Letter, dated 27 March 2015, in which the SSA requested information from the VA to determine whether the FSM was eligible to receive Supplemental Security Income (SSI) * Letter, dated 27 March 2015, in which the SSA returned the application submitted by the applicant requesting to be the payee for the FSM; the letter advised the information submitted was stored electronically and there was no reason for them to retain a paper copy * Health Care Proxy, dated 30 March 2015, in which the FSM appointed the applicant to make any and all health care decisions for him * SSA Form 787 (front page) showing the FSM had filed for or was receiving Social Security or SSI payments 12. There is no evidence the FSM applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge. 13. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood he could receive a UD, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. A UD would normally be furnished to an individual who was discharged for the good of the service. b. Paragraph 3-7a - an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. The FSM was twice charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial. The FSM acknowledged the reason for his discharge and that he could be furnished a UD Certificate. He waived his rights and elected not to submit a statement in his own behalf. The separation authority approved his request and he was discharged accordingly. 2. Neither the FSM nor his legal representative has provided sufficient evidence or a convincing argument to show his UD should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge. His administrative discharge was accomplished in compliance with applicable law and regulation in effect at the time with no indication of procedural error which would have jeopardized his rights. 3. The characterization of his discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time. Without evidence to the contrary, he was properly discharged in accordance with pertinent regulations with due process. 4. The ABCMR does not correct records solely for the purpose of establishing entitlements to medical benefits. 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) AR20150006204 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006204 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1