MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 December 2000
	DOCKET NUMBER:   AR2000036977

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

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Richard T. Dunbar		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his discharge under other than honorable conditions be upgraded to a general discharge.

APPLICANT STATES:  In effect, that he is proud to have had the opportunity to serve in the Army but is not proud of how he behaved and is ashamed of the character of his discharge.  He goes on to state that he did not intend to fail and believed that he could be a good soldier; however, he was too immature to accept the disappointment he experienced when he discovered that his recruiter had misled him and the promises made were not fulfilled.  Accordingly, he rebelled and has suffered the consequences and humiliation ever since his discharge.  He continues by stating that he has been an ardent supporter of the Army and veterans organizations and has been a good citizen who has served his community and country well.  In support of his application he submits numerous complimentary letters and documents regarding his post-service conduct.

COUNSEL CONTENDS:  In effect, through an extensive brief, that the decision of the Army Discharge Review Board (ADRB) to deny the applicant’s request for an upgrade of his discharge was arbitrary and capricious; in that it failed to list in its proceedings the principal statement of the propriety issue which was that the discharge could only be proper if the applicant were facing a punitive discharge and despite the testimony given during a formal hearing, it relied on the presumption of regularity.  He goes on to state that he attempted to obtain a copy of the tapes of the hearing in order to prepare a transcript and was informed that the tapes of the original hearing were lost.  Accordingly, a second hearing was requested and was unjustly denied.  He further contends that the applicant should have been separated under the provisions of Army Regulation 635-200, chapter 13, for sub-standard performance and given a general discharge.  He also contends that the discharge was unjust because there is no record of charges ever being preferred against him and that he did not receive proper and adequate legal counseling.  Additionally, the Board should take into consideration that the promises made by the recruiter were not honored, that the applicant enlisted with parental consent, that he had dropped out of school, was immature and had a low aptitude score that in all likelihood should have disqualified him for enlistment or at least caused him to be separated with an entry level separation when it was discovered that he could not adapt to military life.  He also states that the absence of a charge sheet or evidence that charges were preferred against him that could result in a punitive discharge, the lack of a recommendation by the battalion commander, the lack of proper legal assistance and counseling, the lack of evidence to show that an adequate psychological or psychiatric examination was performed to determine an alternate means of separation, and the lack of evidence of a legal review negates all propriety and equity issues in this case.  Furthermore, he contends that the ADRB failed to address all of the issues and ignored the fact that regulations were violated in the process that should have negated the applicant’s discharge.  Counsel goes into detail about the full extent of his arguments in the brief submitted with the applicant’s application that is included for review by the Board.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted with parental consent in Boston, Massachusetts on 17 April 1980 for a period of 3 years for airborne training and assignment to the 75th Ranger Battalion.  At the time of his enlistment, his parents signed his enlistment contract after certifying that no promises of any kind concerning assignment to duty, training or promotion during the enlistment had been made to them as an inducement to sign the consent for enlistment.  He was transferred to Fort Benning, Georgia to undergo one-station unit training in military occupational specialty (MOS) 11B (infantryman).

His records show that he was examined by medical personnel on sick call and was issued a temporary profile for his lower back on 27 June 1980, for a period of 90 days.  The profile directed limited duty and restricted him from airborne or ranger training during the period of the profile, which was scheduled to expire on 27 September 1980. 

He was awarded the MOS of 11B on 10 July 1980 and on 24 July 1980 nonjudicial punishment was imposed against him for being absent from his place of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 28 July 1980, the applicant waived his enlistment option for airborne training and assignment to the Ranger Battalion.  He indicated in the waiver that he had been counseled on the effects of such a waiver and elected to voluntarily waive that portion of his enlistment contract.   Accordingly, he was transferred to Fort Riley, Kansas for duty as an infantryman on 7 August 1980.

On 20 January 1981, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 6 January to 19 January 1981.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and confinement for 15 days (suspended for 6 months).

The applicant submitted a request for training in a secondary MOS of a medical specialist (91 series) on 5 February 1981 and it was returned without action because the award of a secondary MOS , and especially the 91 series, required formal training and an expenditure of funds that was not authorized.  Additionally, first term soldiers were prohibited from reclassification to another MOS at the time.

On 21 July 1981 the applicant was command referred to the Army Drug and Alcohol Prevention Control Program (ADAPCP) for non-resident rehabilitation due to his wrongful use of amphetamines (multiple drugs), marijuana and excessive alcohol abuse.

On 23 July 1981 the applicant’s commander initiated action to bar the applicant from reenlistment based on his disciplinary and AWOL record.  The applicant elected not to submit comments in his own behalf and waived the 15 days he was allowed to prepare a rebuttal to the bar. 

On 31 August 1981, he was convicted by a summary court-martial of being AWOL from 6 April to 11 May 1981 and 3 August to 7 August 1981 and of two specifications of communicating a threat to a commissioned officer.  He pled guilty and was sentenced to a forfeiture of pay and confinement at hard labor for 25 days.  He was transferred to the Army Retraining Brigade at Fort Riley to serve his confinement on 4 September 1981.

On 7 October 1981, while still in confinement, the applicant submitted a voluntary request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He indicated in his request that he understood that he could request discharge for the good of the service because charges had been preferred against him which authorized the imposition of a bad conduct or dishonorable discharge.  He further indicated that he was making the request of his own free will, that he was not subjected to coercion by any person, that he had been advised of the implications attached to his request, and that he was guilty of the offenses charged or a lesser included offense that authorized the imposition of a bad conduct or dishonorable discharge.  He also indicated that he did not desire further rehabilitation and that he had no desire to perform further military service.  Furthermore, he stated that he had been afforded the opportunity to consult with counsel and although he had been furnished advice, the decision was his own.  Additionally, he indicated that he had been advised that he could submit statements in his own behalf; however, there is no indication that he chose to do so.

The applicant underwent a mental status evaluation on 19 October 1981 and the examining physician evaluated him as having normal behavior, being fully alert, fully oriented, having a level mood, clear thinking process, normal thought content and good memory.  He further opined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, that he had the mental capacity to understand and participate in board proceedings and that he met retention standards. 

The applicant’s immediate commander (a major) recommended approval of the applicant’s request and indicated that the applicant had not completed his training program and based on his negative attitude towards honorable service, his request should be approved.

The applicant’s battalion commander (a lieutenant colonel) provided an endorsement whereas he was to make a recommendation by lining out the recommendations that did not apply and he further stated that if approved, the applicant be discharged under other than honorable conditions.  However, the commander failed to mark any recommendations.

The appropriate authority approved the request on 2 November 1981 and directed that the applicant be discharged under other than honorable conditions.
Accordingly, he was discharged under other than honorable conditions on 4 November 1981 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 3 months and 3 days of total active service and had 105 days of lost time due to AWOL and confinement.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 15 September 1993 citing essentially the same reasons as he has cited to this Board.  The applicant was granted a personal appearance before that board and was represented by counsel.  The ADRB, after reviewing all of the facts, circumstances and evidence presented, determined that the applicant’s failure to perform to Army standards is not outweighed by prior or subsequent service of sufficient merit to warrant an upgrade of his discharge.  The ADRB addressed each of the issues in its written case summary. 

On 22 October 1996 the applicant’s counsel requested that he be provided a copy of the magnetic tape of the personal appearance hearing.  A copy of the tape could not be located and on 28 April 1998 the applicant’s counsel requested that he be granted another hearing, because the absence of the extensive testimony presented to the ADRB would not give this Board adequate information to review.  The President of the ADRB again informed the applicant that the tape was not available and that after reviewing his request for reconsideration, determined that the board’s written report of its review and findings was complete and that he had not provided any new, significant or relevant information to warrant another hearing.

A review of the available records failed to reveal the presence of a charge sheet (DD Form 458).

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Such a request is strictly voluntary on the part of the person who has been charged and he must indicate that he has been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  Another condition of such a request is that the individual must admit guilt to the charges against him or charges of a lesser included offense that is punishable with a bad conduct or dishonorable discharge.  A discharge under other than honorable conditions is normally considered appropriate and there are no provisions for an automatic upgrade of such a discharge.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  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.

2.  In the absence of evidence to the contrary, it appears that the applicant’s voluntary request for separation under the provisions of Army Regulation       635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

3.  Given the circumstances of the case, it appears based on the applicant’s documented record of undistinguished service that the character of his discharge was appropriate.

4.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Therefore, it appears that he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

5.  The applicant’s contention that the charge sheet is required by regulation to be filed in the records and that the absence of such a document makes the discharge null and void is only partially correct.  While the applicable regulations do provide that the charge sheet be filed in the records of the individual concerned, the absence of that document in the individual’s record in no way diminishes the legality of the discharge.

6.  In order for an individual to request a discharge, charges had to have been preferred against the individual and the charges had to have been of such a serious nature to warrant a bad conduct or dishonorable discharge.  Furthermore, in order for his legal counsel to advise him on the mechanics of such a discharge, a charge sheet would have had to have been available before his counsel could have advised him properly.  The evidence of record clearly shows that the applicant acknowledged that he had been charged and that the offense was punishable with a bad conduct or dishonorable discharge.  The applicant has failed to show through the evidence of record or the evidence submitted with his application that such was not the case or that he was improperly advised by legal counsel.  Accordingly, the Board finds that the absence of the charge sheet from his records appears to be an administrative oversight and has no bearing on the validity of his discharge or the procedures that led to the approval of his voluntary request.  

7.  While the Board agrees that the battalion commander failed to indicate his approval or disapproval in the appropriate place on the endorsement, his additional comments indicating that if approved, the applicant should be discharged under other than honorable conditions, is sufficient evidence for a reasonable person to presume that he was recommending approval of the applicant’s request.  In any event, the applicant got what he asked for in his request and there is no evidence to suggest that having the recommendation from the battalion commander marked on the endorsement would have resulted in his application being disapproved.

8.  The applicant’s contention that he was not granted the 72 hours of reasonable time to consider his election appears to be without merit.  Inasmuch as the applicant submitted a voluntary request, without coercion, it was incumbent upon him to determine when he wanted to submit his application for discharge.  He was under no obligation to submit such a request to begin with. It was simply one of his options.

9.  The Board finds that the applicant received a mental status evaluation and he has not shown that the evaluation was in any way flawed or not in accordance with the applicable regulations.  

10.  The applicant’s contention that the absence of a legal review flawed the separation is also not supported by any evidence that shows the outcome was affected in a way other than what the applicant desired at the time or that it in fact did not occur.  Therefore, the Board must presume, in the absence of evidence to the contrary that a legal review was conducted and that the proceedings were found to be legally sufficient.

11.  The Board also finds no evidence to suggest that the applicant would have been separated under a different provision of the regulation or that he would have been denied enlistment based on his aptitude scores.  The evidence of record clearly shows that not only did he have the mental ability to perform in the manner expected of a soldier but that he did so on occasion.  A discharge under other than honorable conditions is still considered appropriate under the same circumstances.
12.  The Board also finds no evidence to support his contention that his recruiter made promises to him in connection with his enlistment that were not kept.  The record clearly shows that he and his mother acknowledged that no such promises had been made that were not memorialized in writing and the applicant voluntarily waived those commitments after completing his advanced individual training (AIT) as an infantryman.  Therefore, the Board finds that his contention that the breach of promises by the Army were his reasons for his misconduct to be without merit.

13.  The applicant’s contention that the ADRB ignored his evidence and testimony and failed to address the pertinent issues also appears to be without merit.  It appears from a review of the case summary that all of the pertinent issues in the case were reviewed and addressed.

14.  The Board also finds no evidence to support the applicant’s contention that he did not receive proper legal advice or that he had ineffective counsel.

15.  The Board has noted the supporting documents citing the applicant’s post service conduct and it congratulates him on his accomplishments.  However, the Board finds no error or injustice in the characterization of his discharge or the process that led to his administrative discharge.  Therefore, the Board finds that his post service conduct does not warrant an upgrade of his discharge when compared to his overall undistinguished record of service.   

16.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___jh ___  ___hof___  __rtd____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000036977	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/12/14	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1981/11/04	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	A70.00/GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.