IN THE CASE OF:	  

		BOARD DATE:	        03 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009501 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be upgraded to a general discharge or changed to a medical discharge. 

2.  The applicant states, in effect, that he believes his present discharge is unjust due to the fact his legal counsel was not honest or competent and he was not appropriately informed of the type of discharge he would receive.  He also requests that the review of his discharge be accomplished as soon as possible, because his situation depends on immediate attention to this matter.

3.  The applicant provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  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.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that he enlisted in the Regular Army on 10 September 1973.  He completed basic combat training at Fort Knox, Kentucky.

3.  Orders, dated 30 October 1973, directed the applicant to proceed on a permanent change of station from Fort Knox, Kentucky to Fort Benning, Georgia for airborne training, with a reporting date of 24 November 1973.  However, the applicant failed to report as directed, and he was placed in an AWOL status on or about 25 November 1973.  He remained in this status until he returned to military control on 21 April 1974.

4.  On 26 April 1974, the applicant was informed that charges had been preferred against him for absenting himself without authority from his unit on or about 
24 November 1973, and remaining so absent until on or about 21 April 1974; an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.

5.  On 17 May 1974, the applicant voluntarily requested discharge for the good of the Service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), and understood that he could request discharge for the good of the Service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he was making his request of his own free will and had not been subjected to any coercion whatsoever by any person, and that he had been advised of the implications that were attached to it.  He further acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of the bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

6.  The applicant also stated that prior to completing his request, he had been afforded the opportunity to consult with appointed counsel for consultation, who fully advised him of the nature of his rights under the UCMJ, the elements of the offense thereto, and the facts which must be established by competent 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 found guilty.  He also acknowledged that although his legal counsel furnished him legal advice, this decision was his own.  



7.  In his request for discharge, the applicant also acknowledged that he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, 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 (now named the Department of Veterans Affairs), and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit statements in his own behalf.

8.  On 23 May 1974, a medical examination was conducted on the applicant in conjunction with his discharge proceedings, and he was found qualified for separation.  The physician who completed this examination also specifically stated that the applicant had no physical or mental defects which warranted medical disposition. 

9.  On 11 June 1974, the applicant accepted nonjudicial punishment under Article 15 of the UCMJ for breaking restriction.  His punishment consisted of 10 days of extra duty.

10.  On 12 June 1974, a mental status evaluation was conducted on the applicant, and he was essentially cleared for any administrative action deemed appropriate by his command.

11.  On 19 June 1974, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished a DD Form 258A (Undesirable Discharge Certificate).  He also essentially directed that the applicant be reduced to the rank and pay grade of private/E-1.  On 28 June 1974, the applicant was discharged accordingly.  

12.  On 4 December 1975, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

13.  The applicant essentially believes that his present discharge is unjust due to the fact his legal counsel was not honest or competent.   

14.  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.  At the time, an undesirable discharge was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

17.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to a general discharge or changed to a medical discharge. 

2.  The applicant's contention that his legal counsel essentially failed to inform him of the type of discharge he would receive was considered, but not found to have any merit.  In his request for discharge, the applicant clearly acknowledged that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, and that he had been advised and understood the possible effects of an undesirable discharge.  He also acknowledged that his legal counsel had fully advised him of the nature of his rights under the UCMJ, the elements of the offense thereto, and the facts which must be established by competent 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 was found guilty.

3.  The applicant's contention that his discharge should be changed to a medical discharge was also considered, but was rejected.  The evidence of record clearly shows that a medical examination was conducted on him in conjunction with his discharge proceedings, and he was found qualified for separation.  The physician who completed this examination also specifically stated that the applicant had no physical or mental defects which warranted medical disposition.

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.

5.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

6.  Based on the applicant's record of indiscipline, which included being charged with AWOL for which he voluntarily requested discharge in lieu of a court-martial, and accepting NJP under Article 15 of the UCMJ for breaking restriction, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.  There is also no basis to change his undesirable discharge to a medical discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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 for correction of the records of the individual concerned.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080009501



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ABCMR Record of Proceedings (cont)                                         AR20080009501



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