The Honorable Fernando J. Gaitan, Jr., United States District 1

Judge for the Western District of Missouri.

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No. 96-1522

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Walter E. Johnston, *

 *

Appellant, *

 * Appeal from the United States

v. * District Court for the

 * Western District of Missouri.

Togo D. West, Jr., Secretary of *

the Army, * [UNPUBLISHED]

 *

Appellee. *

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 Submitted: December 26, 1996

 Filed: January 2, 1997

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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

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PER CURIAM.

Walter E. Johnston appeals from the district court's order

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affirming the decision of the Army Board for Correction of Military

Records (the Board) denying his request to upgrade his "other than

honorable" discharge. In 1985, Johnston enlisted in the United

States Army; he was subsequently charged under the Military Code of

Justice with willful disobedience of a superior officer, and two

specifications of being absent without leave. On July 22, Johnston

was placed in pretrial confinement and met with his military

counsel. On July 23, Johnston signed a "request for discharge for

the good of the Service," pursuant to Army Regulation (AR) 635-200,

¶ 10-1(a). On July 31, the general court-martial convening

authority approved the request, and Johnston received an "other
 AR 635-200, ¶ 10-2(a) provides: "[A] member will not be

2

coerced into submitting a request for discharge for the good of the

Service. The member will be given a reasonable time (not less than

72 hours) to consult with consulting counsel . . . and to consider

the wisdom of submitting such a request for discharge."

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than honorable" discharge from the Army. The Army Discharge Review

Board denied Johnston's applications for review on three occasions.

In 1989, the Board denied Johnston's application to upgrade his

discharge. In 1995, the district court affirmed the Board's

decision, concluding that the Army complied with AR 635-200, ¶ 10-

2(a). Johnston timely appealed, arguing the Army violated its

2

regulations by not affording him at least 72 hours to contemplate

his discharge request. We now affirm.

We review the Board's decision not to take corrective action

only to determine whether its decisionmaking process was deficient.

Watson v. Arkansas Nat'l Guard, 886 F.2d 1004, 1011 & n.16 (8th

Cir. 1989); accord Wolfe v. Marsh, 835 F.2d 354, 356 n.3 (D.C. Cir.

1987), cert. denied, 488 U.S. 942 (1988). We agree with the

district court that the Army afforded Johnston at least 72 hours to

consider his discharge request, complying with AR 635-200, ¶ 10-

2(a), because he had more than 72 hours to contemplate his

discharge request between the consultation with his counsel on July

22, the signing of the request on July 23, the submission of a

letter seeking approval of the discharge request on July 26, and

the approval of the discharge request on July 31. Moreover, we

note that Johnston admitted in his discharge request that it was

voluntary and free of coercion, and that his counsel informed him

of the possibility of receiving an "other than honorable" discharge

and the military and civilian ramifications of such a discharge.

Accordingly, we affirm.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.