IN THE CASE OF:
BOARD DATE: 14 August 2008
DOCKET NUMBER: AR20080011014
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 reconsideration of the previous decision of the Army Board for Correction of Military Records (ABCMR) to deny him a discharge upgrade.
2. The applicant states the Board's previous decision clearly states, "The applicant's separation processing package was not available." He, therefore, argues:
a. "Imperative information" may have been overlooked which could have changed the Board's decision.
b. He completed his "full tour of two years" prior to his discharge. Laws passed in the 1980's required that individuals who completed 180 days of military service are entitled to not less than a General Discharge.
c. He was treated for alcoholism and depression while assigned to Fort Lewis, WA, during which time he adamantly sought discharge. He states, in effect, that had he been discharged for his alcoholism and depression, he would not have ended up with an Undesirable Discharge for unfitness.
3. The applicant provides a 10 June 2008 letter to the ABCMR.
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 AR20080002579, on 8 May 2008.
2. In the original consideration of his case, the applicant's administrative separation packet was not available for review. As the applicant states, this is clearly pointed out in paragraph 8 of the CONSIDERATION OF EVIDENCE section of the Record of Proceedings. Although the separation packet was not available, the applicant's DD Form 214 (Report of Separation From Active Duty) shows he was separated with an Undesirable Discharge (UD) under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 13-5a(1), by reason of unfitness.
3. Army Regulation 635-200, then in effect, required that when a commander contemplated separation of a Soldier with a UD for unfitness, the Soldier would be notified in writing that his discharge had been recommended pursuant to a specific section of the regulation and he would be given the specific allegations on which the proposed action was based. He would also be advised that he had the following rights:
a. To consult with legal counsel.
b. To present his case before an administrative discharge board.
c. To be represented at any hearing by counsel military counsel of his own choice, provided such counsel is reasonably available; or civilian counsel at his own expense.
d. To submit statements in his own behalf.
e. With the exception of consultation with legal counsel, to waive the above rights in writing.
f. The Soldier's notification, his acknowledgment of that notification, and his election of options and/or waiver of rights would have been forwarded to the approving authority with a complete list of supporting documentation demonstrating the reasons for unfitness (e.g., nonjudicial punishments, courts-martial convictions, counseling statements, indebtedness letters, etc.). This entire documentation would constitute the administrative separation packet.
4. Also in the original consideration by the ABCMR, it clearly points out that the Board operates under the presumption of regularity, that is if there is no evidence to the contrary, or if evidence is lacking, it is presumed that everything occurred in accordance with law and regulation then in effect. The burden of proving otherwise rests with the applicant.
DISCUSSION AND CONCLUSIONS:
1. Given the applicant's numerous records of nonjudicial punishment and his convictions by courts-martial, his discharge for unfitness was clearly established with or without review of his administrative separation packet.
2. The applicant did not complete "full tour of two years" prior to his discharge. Although his DD Form 214 covers a period of 2 years, 5 months, and 2 days (or 886 days), he also had 170 days of lost time which served to reduce that time to 1 year, 11 months, and 15 days.
3. The applicant's contention he tried to be released from active duty prior to his discharge is not accepted. There is no record he was treated for any disease or mental defect not otherwise specified; therefore disposition through medical channels was no warranted.
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 to amend the decision of the ABCMR set forth in Docket Number AR20080002579, dated 8 May 2008.
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.
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