APPLICANT REQUESTS: That his records be corrected to show he was honorably discharged.
APPLICANT STATES: That he is entitled to this upgrade because he received a telegram indicating that there was an emergency at home; the Army Discharge Review Board (ADRB) felt that the Army failed to comply with AR 635-212 (sic) relating to the discharge, prejudicial error and violated the right to due process of law; the ADRB questioned the reliability of the Government witness; that he was an excellent soldier; the ADRB indicated that the inconsistencies show that there was no reliability to the discharge; that he enlisted in the Army to make a career of it in the dental field; and, that he has applied for enlistment in the Army Reserve. He provided letters of support, which will be incorporated into his Official Military Personnel File.
EVIDENCE OF RECORD: The applicant's military and medical records show:
On 22 April 1974, he enlisted in the Regular Army. He completed his required training and was awarded MOS 76Y (Supply Clerk), however, based on his civilian acquired skills, he was utilized as a Dental Technician (MOS 91E). He was advanced to pay grade E-4, effective March 1975.
On 2 July 1976, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for the unlawful possession of marijuana on or about 6 May 1976. His punishment was a reduction to pay grade E-3.
On 5 October 1976, he was issued a bar to reenlistment based on his wrongful possession of marijuana; his reduction to pay grade E-3; his constant problems with superiors; his tendency to stretch the truth to cover his wrong doings; and, his numerous incidents involving local German authorities.
Although the facts and circumstances and his request are not in the available records, the records show that in March 1977, the applicant was apprehended for selling cocaine to an undercover agent. Upon apprehension, he was found to have in his possession .99 grams of cocaine.
According to the applicant, an Article 32 investigation was conducted with a recommendation that he be tried by a General Court-Martial (GCM).
On 21 April 1977, the commander indicated that he was not favorably considered for award of the Good Conduct Medal.
On 21 April 1977, his period of service was extended based on his pending GCM.
On 11 July 1977, the unit commander recommended approval of the applicants request for discharge in lieu of trial by court-martial, which had been preferred against the applicant. The commander recommended he receive a general discharge, under other than honorable conditions.
On 2 August 1977, the general court-martial convening authority approved the applicants request and directed a discharge under other than honorable conditions.
On 29 August 1977, the applicant was discharged under AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. His Report of Separation indicates that he had 3 years, 4 months and 8 days of creditable service. The applicants record shows that he had lost time (military confinement), however, the exact amount can not be determined.
On 23 July 1979, the ADRB found his discharge to be proper and equitable and denied his request for upgrade.
On 8 October 1981, the ADRB found his discharge to be proper, but not equitable and recharacterized to a General Discharge.
AR 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge, admitting guilt, for the good of the service in lieu of trial by court-martial. At the time of the applicants separation, the regulation provided for the issuance of an undesirable discharge (under other than honorable conditions).
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 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.
2. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
3. The applicant, as noted above, was discharged based on AR 635-200, chapter 10, not AR 635-212.
4. The ADRB corrected the applicants record based on a technicality - conflicting remarks contained in the recommendation and in the decision. It is unfortunate that the unit commander involved made an ambiguous recommendation for a general discharge under other than honorable conditions. A general discharge is under honorable conditions, while an undesirable discharge is under other than honorable conditions. The chain of command, at the time, apparently felt secure in their interpretation of the intent of the commanders recommendation and the regulatory requirement and processed his request accordingly. Because of the confusing recommendation, the ADRB found his discharge to be not equitable.
5. The applicants request for a chapter 10 discharge, even after appropriate and proper consultation with a lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.
6. 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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