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ARMY | BCMR | CY1997 | 9709936
Original file (9709936.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) under conditions other than honorable be changed to general/under honorable conditions.
APPLICANT STATES : The applicant had made no statements nor advanced any issues of equity or propriety.

EVIDENCE OF RECORD : The applicant's military records show:

The applicant entered the Regular Army on 26 April 1971 for a period of 3 years at 17 years of age. He successfully completed basic training at Fort Campbell, Kentucky, advanced individual training at Aberdeen Proving Ground, Maryland, and was awarded military occupational specialty (MOS) 63H (Mechanic). The applicant was sent overseas to Germany for his first permanent duty assignment.

The applicant's record contains evidence of award of the National Defense Service Medal; however, contains no other documented acts of achievement or service warranting commendation or special recognition. The record does contain evidence that the applicant soon after his arrival in Germany began a pattern of unsatisfactory performance and misconduct including missing work, leaving his work place without permission, disrespect to superiors and supervisors, and disobeying orders. The record also contains evidence that the applicant expressed his desire to leave the Army by any means necessary.

On 13 April 1972 a DD Form 458 (charge sheet) was prepared preferring court martial charges against the applicant for violation of Article 90 (willfully disobey an order) of the UCMJ.

The record also contains documented evidence that on
13 April 1972 the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 of AR 635-200. This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a discharge under other than honorable conditions.


The applicant also attested to the fact that he fully understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration and that he may be deprived of veterans benefits under state and federal law. The applicant also stated that under no circumstances did he desire to perform further military service.

On 20 April 1972 the applicant's unit commander recommended approval of the applicant's request. Additionally, he cited in part the fact that innumerable counseling sessions, by himself and all members of the chain of command, had failed to motivate the applicant. He also indicated that the applicant's insolent attitude was affecting the morale of all members of the unit.

On 28 April 1972 the first intermediate level commander recommended approval of the applicant's request and that the applicant be issued a UD citing the applicant's failure to perform his duties and the substantiating statements of his supervisors. On 2 May 1972 the second level intermediate level commander also recommended approval of the action and a UD with the supporting logic that the applicant had repeated incidents of failure to repair and studied disobedience of lawful commands..

On 11 May 1972 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD. Accordingly, on 31 May 1972 the applicant was discharged after completing 1 year, 1 month, and
5 days of active military service.

There is no evidence that the applicant has, prior to his current application which is dated 6 January 1997, applied to the Army Discharge Review Board nor petitioned for correction of his military record in order to upgrade his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.



Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges are preferred, submit a request for discharge for the good of the service in lieu of trial by court martial.

A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

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. After a thorough review of the evidence of record the Board determined that the applicant made clear his desire not to continue military service under any circumstances and submitted no mitigating factors which would warrant an upgrade of his discharge. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and after consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ.

2. The discharge proceedings were conducted in accordance with law and regulation applicable at the time. The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4. 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.

5. In view of the foregoing, there is no basis for granting the applicant's 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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