BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150014501 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150014501 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150014501 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 his previous request for an upgrade of his general under honorable conditions discharge to honorable. 2. The applicant states that the Board should review and update his records because he had more good time and is not receiving credit for all the time he served. 3. The applicant provides no additional evidence. 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 AC83-06897 on 20 July 1983. 2. The applicant provides a new argument that warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 1 November 1968. 4. On 10 February 1969, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 4 to 10 February 1969. 5. On 21 November 1969, he was convicted by a Special Court-Martial of two specifications of being AWOL from on or about 22 February 1969 to on or about 1 July 1969 and from on or about 3 July 1969 to on or about 29 September 1969. 6. On 10 November 1969, he underwent a psychiatric evaluation. The evaluating psychiatrist diagnosed him with inadequate personality disorder, severe. The psychiatrist classified this disorder as a character and behavior disorder, a condition that would be qualifying for administrative disposition. During the evaluation, the psychiatrist found that the applicant was borderline mentally retarded and that he had attended special education schools in elementary and high school. The psychiatrist also noted that his intellectual capacity seemed to be considerably below average. The psychiatrist recommended elimination under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 7. His DA Form 20 (Enlisted Qualification Record) shows he was confined from 29 September to 17 December 1969 and that he was AWOL from on or about 12 January 1970 to on or about 12 May 1972. 8. His service record contains a psychiatric evaluation, dated 27 March 1972, which was done for the Judge of the Vigo County Circuit Court. The evaluation indicated that the applicant was the product of an emotionally, socially, and culturally deprived family environment. The evaluation indicated that in 1956 he was found to have an IQ of 69, which placed him in the borderline mentally retarded category. 9. On 7 July 1972, the court convicted the applicant of being an accessory after the fact of involuntary manslaughter by the Circuit Court of Vigo County, IN. He was sentenced to not less than 2 years nor more than 20 years in confinement. The sentence was suspended. He was placed on probation for 5 years. 10. His discharge packet is not available. However, his service record contains Special Orders Number 163, published by U.S. Army Administrative School Center and Fort Benjamin Harrison, Fort Benjamin Harrison, IN, on 21 August 1972, which shows he was discharged on 21 August 1973 under the provisions of Army Regulation 635-206 (Conviction by Civil Court), Section VI, for a civil conviction. 11. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he received a discharge under other than honorable conditions (undesirable), and he completed 7 months and 25 days of creditable military service. 12. On 10 April 1974, the Army Discharge Review Board determined the Applicant's discharge was proper and denied his request for an upgrade of his character of service. 13. On 7 May 1975, the ABCMR determined the applicant presented insufficient evidence to indicate probable error or injustice and denied his application. 14. On 23 March 1979, he received a letter informing him the Secretary of the Army directing that his discharge be changed to under honorable conditions (general). He was issued a new DD Form 214 that shows he was discharged on 21 August 1972 under the provisions of Army Regulation 635-200, chapter 14, Section III, for misconduct – conviction by civil court, with service characterized as under honorable conditions (general). Item 27 (Remarks) of his reissued DD Form 214 .shows he had 1,135 days of lost time and lists the following periods of lost time under Title 10, U.S. Code 972: * 4 to 9 February 1969 * 22 Feb to 22 March 1969 * 23 March to 6 June 1969 * 25 to 30 June 1969 * 3 July to 28 September 1969 * 29 September to 27 December 1969 * 12 January 1970 to 12 May 1972 REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 2. Army Regulation 635-5 (Personnel Separations - Separation Documents) in effect at the time established the standardized policy for preparing and distributing the DD Form 214. It directs that the dates of time lost during the current enlistment will be entered on the DD Form 214. All service shown in 18(a) through (f) will be less time lost under Title 10 U.S. Code (USC), section 972 and time lost subsequent to expiration of term of service. Lost time under Title 10, USC, section 972 is not creditable service for pay, retirement, or veteran’s benefits; however, the Army preserves a record of time lost to explain which service between date of entry on active duty and separation date is creditable service for benefits. 3. Title 10, U.S. Code, section 972(a)(2) and section 972(a)(3) states that an enlisted member of an armed force who; (1) is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; or (2) is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted. DISCUSSION: 1. The evidence of record shows the applicant was convicted as an accessory after the fact of involuntary manslaughter by the Circuit Court of Vigo County, IN. The Court sentenced him to not less than 1 year nor more than 10 years in confinement. His sentence was suspended and he was placed on probation for 5 years. 2. In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time. 3. The applicant's service record shows he received an Article 15 for being AWOL from 4 to 10 February 1969 and one special court-martial conviction for two specifications of AWOL from on or about 22 February to on or about 1 July 1969 and from on or about 3 July to on or about 29 September 1969. 4. The evidence of record shows the Secretary of the Army upgraded the applicant's undesirable discharge to under honorable conditions (general) and changed the authority and reason to the current regulation of Army Regulation 635-200, chapter 14, Section III for misconduct - conviction by civil court. 5. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. In accordance with Army Regulation 635-200, paragraph 3-7, his service did not meet the criteria for an honorable characterization of service. 6. The applicant's DD Form 214 shows he completed 7 months and 25 days of creditable active service and had 1,135 days of lost time. Based on the governing regulation in effect at the time, all the service shown under items 18(a) through (f) of the DD Form 214 will be less time lost under Title 10 USC, section 972. The applicant's net active service is properly reflected on his DD Form 214. The evidence does not show that he had any additional "good" time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014501 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014501 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2