BOARD DATE: 6 December 2016 DOCKET NUMBER: AR20160012748 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 BOARD DATE: 6 December 2016 DOCKET NUMBER: AR20160012748 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. BOARD DATE: 6 December 2016 DOCKET NUMBER: AR20160012748 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 mother of a former service member (FSM), requests, in effect, an upgrade of her son's under other than honorable conditions (UOTHC) discharge. 2. The applicant states, in effect, that her son is near death and she would like his record to be clean so that she may be allowed to bury him in a military grave with military honors. 3. The applicant provides: * Power of Attorney signed by the FSM on 17 September 2013 * FSM's State of North Carolina Certificate of Live Birth * DD Form 214 (Report of Separation from Active Duty) for the period ending 14 March 1974 * document from Southern Hills Healthcare & Rehabilitation, dated 26 July 2016, with enclosure * letter from Willis-Knighton Health System, dated 2 September 2016 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 2 August 1971. He held military occupational specialty (MOS) 95B (Military Policeman). The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4. 3. The FSM accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following four occasions: a. on 27 March 1972, for leaving his post as a sentinel without permission on 23 March 1972 and for willfully disobeyed a lawful general order by remaining off post overnight without authorization on 25 March 1972; b. on 2 August 1972, for willfully disobeying the lawful order of a noncommissioned officer (NCO) on 1 August 1972, for entering a room of two Korean National females through the window to wit: disorderly and under service discrediting circumstances on 1 August 1972, and for committing assault against a fellow Soldier causing injury on 31 July 1972; c. on 25 May 1973, for being derelict in the performance of duty as a military policeman, to wit: telling a female civilian to take hold of his pistol and try to take it away from him on 17 May 1973; and d. on 7 December 1973, for being absent without leave (AWOL) from on or about 20 November through on or about 29 November 1973, for willfully disobeying a lawful regulation by having live ammunition as part of his personal property, for unlawfully impersonating an NCO on 3 November 1973, and for willfully disobeying the lawful order of an NCO on 2 November 1973. 4. The FSM's immediate commander notified him on or about 22 January 1974 of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a (1), for unfitness – frequent incidents of a discreditable nature with military authorities. 5. The FSM's immediate commander recommended his discharge on 22 January 1974, under the provisions of Army Regulation 635-200, chapter 13, for unfitness. His commander cited the FSM's frequent incidents of a discreditable nature with military authorities. He had a record of having been counseled on numerous occasions, to include letters of indebtedness, uniform violation, impersonating a noncommissioned officer, nine days of AWOL and his receipt of four Article 15s. He displayed a substandard attitude toward the Army and was frequently involved in petty offenses. He performed in three different sections as a form of rehabilitation, with little change in performance. He was not qualified to perform duties as a military policeman due to his misconduct. 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 22 January 1974, shows the FSM underwent a mental evaluation in anticipation of his administrative separation. This form shows the FSM was fully alert and oriented with normal behavior. He was clear in his thinking process with normal thought content. He had no significant mental illness, was mentally responsible, and was able to distinguish right from wrong. He was found to meet the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 7. The FSM consulted with legal counsel on or about 4 February 1974 and was advised of the basis of the proposed separation action. He acknowledged the fact that he had been counseled regarding the basis for the contemplated separation, its effect, and the rights available to him. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. He elected to waive consideration of his case by a board of officers, and as a result waived a personal appearance before the board, and waived counsel representation. He also elected not to submit statements in his own behalf. 8. Special Orders Number 43, issued by Headquarters, 9th Infantry Division and Fort Lewis, Fort Lewis, Washington, dated 12 February 1974, relieved the FSM from the 14th Military Police Company and assigned him to the U.S. Army Personnel Control Facility, Fort Lewis, WA, effective 12 February 1974. 9. The separation authority approved the FSM's discharge on 7 March 1974, under the provisions of Army Regulation 635-200, chapter 13-5a (1), by reason of unfitness with the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade. 10. The FSM was discharged accordingly on 14 March 1974. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 13-5a (1), with a UOTHC character of service. He completed 2 years, 7 months, and 4 days of total active service and he had 9 days lost under Title 10, U.S. Code, Section 972. 11. There is no indication the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 12. The applicant provided the following: a. a document from Southern Hills Healthcare & Rehabilitation, dated 26 July 2016, with enclosure, which shows the FSM's financial statement with his health care facility; and b. a letter from a Dr. S.Mc., of the Willis-Knighton Health System, dated 2 September 2016, which outlines the FSM's condition: SM is a resident of Southern Hills Healthcare & Rehab which is a nursing home and rehab center in Shreveport, LA. He arrived at the facility [on] 4 June 2013 and has remained there since that time due to his multiple medical problems which have left him with mobility issues and he is now confined to a wheelchair. His current medical problems are chronic kidney disease stage 4, diabetes mellitus type 2, hypertension, congestive heart failure and atrial fibrillation with cerebrovascular disease, which has resulted in an ischemic stroke. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a 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. b. Paragraph 3-7b 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge (i.e., UOTHC) was normally issued unless the particular circumstances warranted an honorable or a general discharge. DISCUSSION: 1. The applicant's request for an upgrade of the FSM's UOTHC discharge was carefully considered. 2. While the applicant's desire to have the FSM, her son, be buried in a military grave with military honors upon his passing is understandable, the Board does not grant requests for upgrade of discharges solely for the purpose of making an FSM eligible for veterans' benefits. Every case is individually decided based upon its merits when an applicant (either for him/herself or acting on behalf of an FSM) requests a change in their discharge status. 3. The available evidence shows the FSM was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. In accordance with Army Regulation 635-200, an under other than honorable conditions (an undesirable) discharge is normally appropriate for Soldiers discharged under chapter 13 unless the particular circumstances warranted an honorable or a general discharge. In the FSM's case, the separation authority determined that characterization of his service as UOTHC was appropriate. 4. An honorable discharge is a separation from the Army 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012748 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012748 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2