IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110019006 

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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States District Court for the District of Columbia.  The case is remanded because the ABCMR'S decision did not address the plaintiff's due process claim.

2.  According to the Memorandum Opinion:

	a.  The plaintiff stated his commander failed to provide any verbal explanation to the effects of his pending discharge.

	b.  The plaintiff claimed that he was never offered "a fully informed notice of the basis [of his discharge] and its effect," and therefore could not "intelligently and knowingly waive a hearing."

	c.  The plaintiff alleges his 1968 waiver was ineffective because the Army violated his due process rights by failing to provide him with sufficient information regarding the stigmatizing effects of his discharge prior to presenting the waiver.

	d.  The ABCMR's discussion did not substantively address the plaintiff's due process claim alleging an ineffective waiver.

CONSIDERATION OF EVIDENCE:

1.  He enlisted on 23 September 1966 in the Regular Army for a period of 
3 years.  He was approved for enlistment with a waiver for three charges of disorderly conduct, one at age 15 and two at age 18.

2.  He was assigned to Company A, 4th Support and Transportation Battalion in the Republic of Vietnam from 1 March to 23 May 1968.  On 24 May 1968, he was transferred to the 106th General Hospital in Japan and further transferred to Valley Forge General Hospital, Phoenixville, PA.  He was assigned to the 67th Field Depot, New Cumberland Army Depot, New Cumberland, PA.

3.  On 17 October 1968, a captain in the Medical Corps, a psychiatrist, from the Valley Forge General Hospital examined the applicant.  The examiner diagnosed him as having a sociopathic personality with passive-aggressive features.  He recommended the applicant be separated from the military service under the provisions of Army Regulation 635-212 (Discharge, Unfitness and Unsuitability).

	a.  The psychiatrist stated the applicant gave a history of marked social inadaptability prior to and during service.  He had been arrested at least four times for such offenses as disorderly conduct and underage drinking.

	b.  While in the Army he had amassed "several Articles 15" for such offenses as missing formation, going to an off limits bar in Vietnam, having possession of illegal drugs, and being absent without leave.

	c.  The psychiatrist believed that the applicant would not adjust to further military service and further rehabilitative efforts probably would be nonproductive.

	d.  The psychiatrist stated there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.

4.  The applicant's discharge packet was not available for the Board's review.

5.  On 5 November 1968, he was discharged by reason of Unsuitability - Apathy, defective attitudes and inability to expend efforts constructively.  He completed 
2 years, 1 month, and 14 days of active service that was characterized as under honorable conditions.

6.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  This regulation stated:


	a.  The commanding officer may afford the individual the opportunity to waive his right of a hearing before a board of officers.  If so, the unit commander will advise the individual in writing of the basis for the proposed discharge action and advise him that he had the right:

* to present his case before a board of officers
* to submit statements in his own behalf
* to be represented by counsel
* to waive the above right in writing

	b.  The individual was to be given a reasonable time (not less than 48 hours) to consider waiver of board proceedings and be given the opportunity to consult with counsel prior to waiving his rights.  

	c.  The individual was to have submitted a signed statement indicating that he had been advised of the basis for the contemplated separation and its effect, and of the rights listed above.  The statement was to include a request or a waiver by the individual of each right.  If he refused to sign a statement it would be considered that he did not waive any of his rights.

	d.  The immediate commander would then submit a request, in letter form, to the special court-martial convening authority to eliminate the individual from the service because of unsuitability.  The commander exercising special court-martial jurisdiction would either convene a board of officers to determine whether the individual should be separated for unsuitability or when the board hearing had been properly and effectively waived, approve separation of the individual for unsuitability.

7.  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.  The 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.

8.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.


DISCUSSION AND CONCLUSIONS:

1.  Because of the delay by him (almost 40 years after his discharge) in submitting his application to the Board, his discharge packet was no longer available for review.  Therefore, it is presumed that the Army's administrative processing of the applicant for discharge was correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

2.  Therefore, it is presumed his commander  advised him in writing of the basis for the proposed discharge action, the effects of such a discharge and resulting characterization of service, and of his rights which included a hearing.  He would have been afforded the opportunity to consult with counsel prior to waiving any of his rights and counsel would have also fully explained the reason for his discharge and the effects of it.  As such, it must also be presumed that he either consulted with counsel prior to waiving his right to a board of officers and, therefore, was fully aware of any stigmatizing effects of a general discharge, or he waived his right to consult with counsel after receiving a complete explanation from his commander.  Additionally, it is noted the applicant raised these issues decades after his discharge, when the Army no longer had a copy of his discharge packet available to disprove his allegations.  Under the doctrine of laches, the applicant is precluded from raising such issues in an untimely manner as the passage of time precludes the Army from mounting an adequate defense. 

3.  The applicant received a general discharge under honorable conditions.  This characterization differs markedly from a characterization of under other than honorable conditions, previously known as an undesirable characterization.  As pointed out by applicant’s counsel in his brief, a general discharge does not prevent the receipt of Veterans’ benefits as does an other than honorable characterization.  Therefore, greater due process, including more detailed notice of the impact of those discharges has traditionally been afforded for those discharges which result in loss of Veterans’ benefits.  The Army met due process requirements for the type of discharge characterization under consideration, and applicant has failed to demonstrate the notice he received deprived him of the opportunity to make informed decisions when confronted with the discharge process.  

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process and that the type of discharge, the reason for separation, and characterization of service were appropriate considering all the facts of the 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 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)                                         AR20110019006



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ABCMR Record of Proceedings (cont)                                         AR20110019006



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