MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 January 2003
         DOCKET NUMBER: AR2002077724

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Ms. Gail J. Wire		Member
Mr. Patrick H. McGarthy, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded.

APPLICANT STATES: In effect, that when he signed his discharge he was ill with hepatitis and was unaware of what he was signing. He claims that he was under duress at the time because he had been beaten up by his sergeant in basic training and while he was in the hospital, he was visited by military personnel who questioned him on this beating. He claims his discharge was unlawful because he was ill and did not understand the procedure. Finally, he claims that he was deceived into believing that he was receiving an honorable discharge by his counsel and other military personnel.

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

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. Failure to file within the time allotted may be excused by a correction board if it finds it would be in the interest of justice to do so.

The evidence of record confirms that the applicant applied to and was denied
an upgrade to his discharge by the Army Discharge Review Board (ADRB). In addition, in 1975, in a response to a Congressional inquiry, he was advised that he could apply to this Board for an upgrade of his discharge. The Board has elected to conduct a substantive review of the merits of this case to determine if it would be in the in the interest of justice to excuse the applicant’s failure to timely file.

On 19 August 1969, he was inducted into the Army of the United States for two years. He completed basic training at Fort Jackson, South Carolina and was assigned to Fort McClellan, Alabama, to attend advanced individual training (AIT).

The applicant’s record confirms that the applicant was never promoted to a grade above private/E-1, and it documents no acts of valor, significant achievement, or service warranting special recognition. However, it does reveal an extensive disciplinary history for absent without leave (AWOL) related misconduct.

On 10 September 1969, while he was still in basic training, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from his unit between 6 and 9 September 1969.

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On 20 October 1969, the applicant departed AWOL from his unit at Fort McClellan, and on 18 November 1969, he was dropped from the rolls of his organization as a deserter. The applicant remained away for 121 days until returning to military control at Fort McClellan on 17 February 1970.

A court-martial charge was preferred against the applicant, and on 17 April 1970, he consulted legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. He was also counseled on the effects of a request for discharge, and the rights available to him. Subsequent to this counseling, the applicant personally elected to voluntarily request a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.

In his request, the applicant stated that he had not been subjected to coercion with respect to his discharge request, and that he had been advised of the implications that were attached to it. He also stated his understanding of the fact that he could receive an UD and as a result could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veteran’s Administration, and the he could be deprived of his rights and benefits as a veteran under both Federal and State law.

On 1 May 1970, the applicant’s voluntary request for discharge was approved by the appropriate authority, who directed that he receive an UD. On 7 May 1970, the applicant was discharged accordingly. At the time of his discharge, he had completed only 7 months and 15 days of creditable active military service, and he had accrued 124 days of time lost due to AWOL.

The applicant’s medical record shows that he was hospitalized twice for hepatitis, first in June 1969 an again in April 1970. In addition, there is a record of psychiatric evaluations completed on him while he was in basic training at
Fort Jackson. The last evaluation, dated 24 June 1969, diagnosed the applicant with an antisocial personality manifested by drug abuse, civilian disciplinary difficulty, antisocial behavior patterns, low frustration tolerance, and difficulty relating to authority figures. The Psychiatrist’s comment on this evaluation included remarks that indicated that the applicant had repeatedly returned to the use of drugs, and that his potential for satisfactory military adjustment was very poor.

On 14 March 1973, the ADRB denied the applicant’s request for an upgrade to his discharge after it determined that his discharge was proper and equitable.

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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 have been 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 an 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. The Board notes the applicant’s contentions that his discharge was unjust because he was ill and unaware of what he was signing; he was under duress at
the time he signed it; and he was deceived into believing that he would receive an honorable discharge. However, the Board finds insufficient evidence to support these claims.

2. The record contains no evidence showing that the applicant was under duress or that he was coerced into requesting a discharge in lieu of court-martial. In addition, there is no medical evidence that shows his judgment or ability to fully understand the discharge proceedings against him was impacted by any illness he suffered from at the time.

3. The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and that after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In his discharge request, he confirmed that he had not been subjected to coercion and that his legal counsel had fully advised him on the effects of his request and of an UD.

4. The Board is also satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the Board finds that the applicant’s discharge processing was conducted in accordance with the applicable law and regulations, and that it accurately reflects his overall record of undistinguished service.

5. 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 this requirement.

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6. In addition, the law requires that applications for correction of military records be filed within 3 years after the discovery of the alleged error or injustice. Failure to file within the time allotted may be excused by a correction board if it finds it would be in the interest of justice to do so. In view of the facts of this case, the Board finds the applicant has failed to explain or satisfactorily demonstrate by competent evidence that it would be in the interest of justice to excuse the failure to timely file within the 3 year statute of limitations.

7. 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; and he has not presented and the records do not contain sufficient justification to conclude that it would be in interest of justice to grant the requested relief on the merits of the case, or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__KAN__ __GJW _ __PHM __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002077724
SUFFIX
RECON
DATE BOARDED	2003/01/23
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/05/07
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of CM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.