APPLICANT REQUESTS: That his record be corrected to show that his discharge under other than honorable conditions (UOTHC) was upgraded to honorable.
APPLICANT STATES: That the commanders statement that he could not adjust to military life is unfounded. Further, he had a breakdown due to Agent Orange exposure and Post Traumatic Stress Disorder (PTSD) (The applicant has not provided any evidence to support his statements, nor is there any evidence of either in his available record).
EVIDENCE OF RECORD: The applicant's military and medical records show:
During the period 4 May 1967-28 April 1969, he served in the Army of the United States for 1 year, 11 months and 23 days.
During the period 30 July 1968-24 April 1969, he served in the Republic of Vietnam.
On 20 January 1978, he enlisted in the Regular Army.
On 18 August 1980, the unit commander preferred charges against the applicant for being absent without leave for the period 8 March-14 August 1980, 156 days.
On 20 August 1980, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge under Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He acknowledged that he was guilty; that he could receive a discharge UOTHC; that he understood the effects of receiving such a discharge; that he had consulted with legal counsel and had been fully advised of the nature of his rights, evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if he were found guilty.
On 20 August 1980, a mental status evaluation and a physical examination cleared the applicant for discharge.
On 8 September 1980, the appropriate separation authority approved his discharge and directed his reduction to the lowest pay grade and that he receive a discharge UOTHC.
On 17 September 1980, the applicant was discharged, UOTHC, under the above cited regulation. His Report of Separation indicates that he had 2 years, 2 months, and 22 days of creditable service and 156 days of lost time.
On 20 December 1996, the Army Discharge Review Board found the applicants discharge to be proper and equitable and denied his request for an upgrade.
Army Regulation 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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must include the individuals admission of guilt. At the time of the applicants separation, the regulation provided for the issuance of a UOTHC discharge.
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. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial. Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.
3. The applicants voluntary request for separation to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.
4. The applicants request for discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.
5. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
6. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
7. 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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