IN THE CASE OF:	  

		BOARD DATE:	       4 December 2008

		DOCKET NUMBER:  AR20080012404 


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 (UD) be upgraded.

2.  The applicant states, in effect, that he believes he was denied due process during his separation processing because he was not provided adequate legal counsel.  He also claims that due to his depressed state of mind, because he was threatened with prison time, he made an immature decision.

3.  The applicant provides the following documents in support of his application:  self-authored statement, third party statement, Separation Document (DD Form 214, Report of Separation from Active Duty), and Reports of Medical History (SF 93).

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 record shows he enlisted in the Regular Army and entered active duty on 29 September 1973.  He was trained in and awarded military occupational specialty (MOS) 16C (Hurcules Fire Control Crewman).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows in item 18 (Appointments and Reductions) that he was advanced to private first class on 1 January 1975 and that this is highest rank he attained while serving on active duty.  Item 9 (Awards and Decorations) shows that during his active duty tenure he earned the National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  On 30 May 1974, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation by wrongfully having in his possession marijuana, a controlled substance.  His punishment for this offense was a reduction to private/E-1, forfeiture of $100.00 pay for two months, and 45 days of restriction and extra duty (24 days suspended for 3 months).

5.  On 12 June 1975, the unit commander prepared a Bar to Reenlistment Certificate on the applicant.  The reason cited for the action was the applicant's Article 15 for wrongful possession of marijuana.  He also stated that the applicant only did enough to stay out of trouble and that although he is a rehabilitative success for drug abuse, he was not motivated toward doing his job or being in the service.  On 13 June 1975, the appropriate authority approved the bar to reenlistment.  The applicant acknowledged receipt of this action and elected neither to appeal the action nor to submit a statement in his own behalf.

6.  The applicant's record contains a Notice of Unauthorized Absence from United States Army (DA Form 3835).  This document shows that the applicant departed absent without leave (AWOL) from his unit on 4 August 1975 and was dropped from the rolls of his organization on 2 September 1975.  It also contains a Notice of Return of United States Army Member from Unauthorized Absence (DA Form 3836) which shows he was apprehended by military authorities and returned to military control on 3 September 1976.

7.  The applicant’s record contains a mental status evaluation completed on 10 September 1976 which shows he suffered from no significant mental illness.  His record also contains SFs 93, dated 1 July 1975 and 10 September 1976, in which indicated he had suffered from depression and excessive worry; however, he also confirmed he was in good health.

8.  The applicant's record contains a Report of Medical Examination, dated 10 September 1976 which confirms he suffered from no disqualifying medical or mental condition and in which he was medically cleared for retention/separation by competent medical authority.

9.  On 13 September 1976, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ, for being AWOL from on or about 4 August 1975 through on or about 29 August 1976.

10.  On 14 September 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a UD, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

11.  In his request for discharge the applicant acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a UD and elected not to submit a statement on his own behalf.

12.  On 8 October 1976, the separation authority approved the applicant’s request for discharge, and directed that he receive a UD.  On 18 October 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued at that time confirms he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service.  It further shows that at the time he had completed a total of 1 year, 11 months, and 24 days of creditable active military service and that he had accrued 391 days of lost time due to AWOL.

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

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.  The separation authority can authorize a general, under honorable conditions discharge (GD), or an honorable discharge (HD) if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.  At the time of the applicant's separation, the regulation provided for the issuance of an UD. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was denied due process and received inadequate counsel was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record also confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. It further confirms that after consulting with defense counsel and being fully advised of the basis for the contemplated trial by court-martial, the effects of a UD, and of the rights available to him, the applicant voluntarily requested discharge in lieu of trial by court-martial in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive a UD which was consistent with regulatory policy.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  As a result, the record clearly confirms the applicant was not denied due process in connection with his discharge processing.

3.  The evidence of record confirms the applicant underwent a mental status evaluation and separation physical examination that confirmed he suffered from no disabling mental or physical condition at the time of his discharge.  As a result, it is clear he was mentally competent when he elected to voluntarily request discharge in order to avoid a trial by court-martial that could have resulted in his receiving a punitive discharge.

4.  The applicant’s record is void of any acts of valor, significant achievement, or service warranting special recognition and it reveals an extensive disciplinary history that includes his accrual of 391 days of time lost due to AWOL.  As a result, his record did not support the issuance of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade at this time.

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.  

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 for correction of the records of the individual concerned.



      ____________x_____________
                 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)                                         AR20080012404



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ABCMR Record of Proceedings (cont)                                         AR20080012404



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