APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge.
APPLICANT STATES: In effect, that during basic training he had problems with his feet. That when his commander told him the Army wanted to discharge him, he requested a medical discharge and it was denied. He agreed to take the discharge the commander offered and has since lived with the stigma of an undesirable discharge. He has lead a clean life since his discharge and he wants to be able to tell people he served in the Army.
COUNSEL CONTENDS: In effect, that since his clients discharge packet did not contain copies of the disciplinary action documents namely, records of nonjudicial punishment under Article 15, UCMJ, and conviction by a summary court-martial, counseling statements and an unsatisfactory efficiency rating, and the Army has no copies in their records repositories, then they did not exist. In effect, if these documents do not exist then the reasons for his clients undesirable discharge are invalid and he should receive a general discharge.
Counsel submits copies of four examples of Army Discharge Review Board Case reports where the applicants discharge was upgraded because there were no records of counseling statements making them improper discharges.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant was a 21 year old married man with a child when he entered the Army on 3 March 1971. He completed basic training but failed to complete Advance Individual Training (AIT) so he was rescheduled again for AIT for the Food Service Course. The applicant was reported AWOL on 5 July 1971 and returned on 19 July 1971 and he received a Summary Court Martial for this AWOL. He went AWOL again from 3 August 71 to 5 August 71 and from 16 August 71 to 25 August 71. In addition to these three AWOLs the applicant failed to go to his assigned class on eight other occasions.
While in an AWOL status the applicant was arrested by the military police for possession of an altered ID card and carrying a knife with an unauthorized blade.
On 8 September 1971 due to his behavior and pattern of AWOL he was recommended for administrative separation due to frequent incidents of a discreditable nature involving military and civilian authorities under the provisions of
AR 635-212.
On 10 September 1971 the applicant waived his right to consult with counsel and his right to submit statements on his own behalf. He waived consideration of his case to be heard by a board of officers.
The applicant was referred to the local mental health service and was alert and oriented to questions of time, place, person and situation and his memory for past and recent events was intact. There was no significant mental illness. The applicant was mentally responsible and he was able to distinguish right from wrong and to adhere to the right.
The separation authority waived further rehabilitation, approved the recommended separation and directed that the applicant receive an undesirable discharge. On 6 October 1971 the applicant was discharged with 6 months 10 days active duty service and 25 days lost time.
On 11 December 1979 the Army Discharge Review Board denied the applicant's request for upgrade of his discharge.
Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.
Army Regulation 635-40, paragraph 1-2, in effect at the time, provided that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determines that the disability was the cause or substantial contributing cause of the misconduct, or that circumstances warrant physical disability processing in lieu of administrative processing. A copy of the signed decision of the general court-martial authority directing physical disability processing will be included with the records.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. In the absence of evidence to the contrary, administrative regularity must be presumed.
2. The administrative discharge was imposed in compliance with applicable laws, regulations and policies. There is no evidence of any substantive violation of any of the applicants rights.
3. The applicant waived the opportunity to submit statements in his behalf. It is improbable that he would have done so if he felt there were errors that caused an unjust discharge such as the non-existence of all of the disciplinary actions.
4. The applicant was being processed for unfitness and was not eligible for medical disability processing.
5. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
6. The contentions of the applicant and counsel have been noted by the Board. However, they are not supported by either evidence submitted with the application or the evidence of record. The discharge process was in accordance with applicable law and regulations and the applicants service was appropriately characterized.
7. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
8 In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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