RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060009875 


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


X
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his request that his undesirable discharge (UD) be upgraded.

2.  The applicant states, in effect, that during his separation processing, his due process rights were violated.  He claims that after having been informed that he was pending trial by court-martial based on a court-martial charge against him for being absent without leave (AWOL), he was never afforded the opportunity to have counsel advise him on his decision regarding acceptance of an UD.  He further claims he was not afforded a reasonable amount of time to make a more informed and beneficial decision regarding the acceptance of an UD.  

3.  The applicant provides a self-authored statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050005442, on 9 February 2006.

2.  During its original review of his case, the Board concluded the applicant's separation processing was accomplished in accordance with applicable regulations, and it found no indication of procedural errors that would have tended to jeopardize the applicant's rights.  The Board further found the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel, and therefore, his record of service was insufficiently meritorious to warrant either a general, under honorable conditions discharge (GD) or an honorable discharge (HD).  

3.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 31 October 1972.  He was trained in, awarded, and served in military occupational specialty (MOS) 76W (Petroleum Storage Specialist), and the highest rank he attained while serving on active duty was private first class (PFC).  

4.  The applicant's disciplinary record includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 26 July 1973, for being disrespectful in language and deportment toward his First Sergeant (1SG), his superior noncommissioned officer (NCO).
5.  On 31 January 1974, a court-martial charge was preferred against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 
16 November 1973 through on or about 29 January 1974.  

6.  On 31 January 1974, after expressing a desire to request discharge for the good of the service in lieu of trial by court-martial, the applicant consulted with legal counsel, a lawyer from the Judge Advocate General (JAG) Corps.  Counsel advised the applicant of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD, and of the procedures and rights available to him.  Counsel also advised the applicant that the Army was not trying to separate him at that point, and if the applicant requested discharge for the good of the service, it must be his voluntary choice and no person could make, force, or coerce him to ask for discharge.  

7.  Counsel further informed the applicant that only he could make the request for discharge because he was pending charges which authorized the imposition of a bad conduct or dishonorable discharge.  Counsel also advised the applicant that he had the right to consult with counsel in making his decision, which was counsel's purpose during their counseling session at the time.  Counsel also informed the applicant that if he felt he wanted additional consultation with the counsel appointed to defend him at future court-martial, military counsel of his choice, or a civilian counsel hired at his own expense, that the applicant should inform him of this and he would act accordingly.  

8.  During this session with legal counsel, the applicant was also advised that if his request for discharge were accepted, he would normally be discharged under other than honorable conditions and furnished an UD Certificate.  As a result, he would be deprived of many or all Army benefits, and would be ineligible for many or all benefits administered by the Veteran's Administration (VA), and he would be deprived of his rights and benefits as a veteran under both Federal and State law.  Counsel also told the applicant that in order to better show him this, he was providing him a list containing most Federal veteran's benefits available showing the effects of an UD upon each listed benefit.  Counsel reviewed this list with the applicant and explained it to him.  

9.  Counsel also warned the applicant that widespread rumors that an UD could be easily changed to an HD after release from the Army, or after a certain time it automatically became honorable, were totally false.  He further informed the applicant only two agencies could change the discharge and then only based on factual error or injustice, and that both agencies change only a small percentage 
of discharges.  He finally informed the applicant the agencies were the Army Discharge Review Board (ADRB) and Army Board for Correction of Military Records (ABCMR), and he provided the applicant statistics on the number of discharges upgraded by each agency.  

10.  Counsel concluded by asking the applicant, now that he had the facts regarding his request for discharge and the effects of an UD, not to make a hasty decision on his request and that he could now complete his request for discharge or take more time in making his decision.  He informed the applicant he had 
48 hours to consider his decision, and that he (Counsel) would be available to discuss the matter with the applicant at his request.  The applicant acknowledged that he had received counseling concerning discharge for the good of the service and that he had been provided a list of Federal veteran's benefits that would be affected by issuance of an UD.  The applicant and legal counsel both authenticated this counseling document with their signatures on 31 January 1974. 

11.  On 15 April 1974, the separation authority approved the applicant’s request for discharge and directed that he receive an UD, and that he be reduced to the lowest enlisted grade.  On 19 April 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 
1 year, 3 months, and 7 days of creditable active military service and that he accrued 72 days of time lost due to AWOL.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was denied due process and was not given a reasonable time to consider the offered discharge provisions or notified that counsel was available upon request were carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and that he was appropriately counseled by a JAG attorney on the basis for the court-martial, and that it could receiving a punitive discharge.  

3.  The evidence of record further shows the applicant's legal counsel also advised him on his right to counsel, and of the possible negative effects associated with his request for discharge for the good of the service and of receiving an UD.  As a result, it appears all requirements of law and regulation were met, and that the applicant's rights were fully protected throughout his 
separation processing.  There is no evidence showing he was denied due process, or that he was not fully advised of the impact of his decision to request discharge to avoid a trial by court-martial that could have resulted in his receiving a punitive discharge.  

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 this requirement, or that would support a change to the Board's original decision in this case. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X   __X __  __X_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20050005442, dated 9 February 2006.




_____X__
          CHAIRPERSON




INDEX

CASE ID
AR20060009875
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/08
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
1974/04/19
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Swartz
ISSUES         1.

2.

3.

4.

5.

6.