IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150008788 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150008788 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150008788 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 widow of a deceased former service member (FSM), requests, in effect, an upgrade of her late husband's undesirable discharge or correction of his reason and authority for separation to show hardship. 2. The applicant states, in effect: a. The FSM's separation should be upgraded to at least a hardship discharge. His mother was ill, but he was still fighting for our country. He was a good Soldier, good husband, and good father. b. The FSM passed away from lung cancer in 2002. He deserved a discharge upgrade after all the horrible things he went through in Vietnam and how he was treated upon his return from Vietnam. c. They married at a young age and had five children. The FSM always had a job and supported his family. d. She is in financial trouble and her health is bad. Her major appliances are broken and she might lose her house. 3. The applicant provides: * marriage license * FSM's death certificate * FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 enlisted in the Regular Army on 29 July 1969 for a period of 3 years. He served as a water supply specialist in Vietnam from 11 January 1970 to 4 December 1970. 3. His records show he was absent without leave from: * 3 December 1971 to 13 December 1971 (11 days) * 10 January 1972 to 31 July 1972 (204 days) 4. His records are void of the specific facts and circumstances surrounding his discharge action. However, his DD Form 214 shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 28 August 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and assigned separation program number 246 (discharge for the good of the service). He completed 2 years, 5 months, and 28 days of total creditable active service and accrued 212 days of lost time due to desertion, absence, or confinement. 5. There is no evidence showing the FSM requested separation for hardship. 6. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 7. The FSM died on 29 September 2002. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. Chapter 10 of the version currently in effect is essentially unchanged. b. Chapter 6 of the version in effect at the time set forth the criteria and procedures and provided authority for the separation of enlisted personnel because of dependency or hardship. Paragraph 6-4 stated hardship exists when, in circumstances not involving death or disability of a member of a member of the enlisted person's family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship. Separation from the service of enlisted personnel because of dependency or hardship would be granted when all the following circumstances existed: * conditions have arisen or have been aggravated to an excessive degree since entry on active duty or active duty for training * conditions are not of a temporary nature * every reasonable effort had been made by the enlisted person to alleviate the dependency or hardship conditions without success * discharge or release from active military service of the enlisted person is the only readily available means of eliminating or materially alleviating the dependency or hardship conditions c. Paragraph 3-7a currently in effect 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate. d. Paragraph 3-7b currently in effect 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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: 1. The applicant's contentions were carefully considered. However, the FSM's records are void of the specific facts and circumstances surrounding his discharge. It appears that he was charged with the commission of an offense (absence or desertion) punishable under the Uniform Code of Military Justice with a punitive discharge. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. In the absence of evidence showing otherwise, the applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial, certifying that he was counseled and understood his rights. It is further presumed that his discharge accurately reflects his overall record of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008788 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2