BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150018331 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: 2 May 2017 DOCKET NUMBER: AR20150018331 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 to amend the decision of the ABCMR set forth in Docket Number AR20060015225, dated 26 April 2007. _____________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: 2 May 2017 DOCKET NUMBER: AR20150018331 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 earlier request for an upgrade of his under other than honorable conditions discharge. 2. The applicant states: * while he was in the Army, he had surgery on his right knee; during his recovery, his spouse at the time started to call and tell him she would leave him * she lived in Phillipsburg, PA, and he was stationed at Fort Rucker, AL, so he decided to leave and check on her in an effort to save his marriage * they had two kids and he was afraid he would lose them; he tried to reach out to coworkers but felt helpless * they managed to stay together but they were eventually divorced in 1978 * once he returned to post in MD, he was discharged; however, he was told his discharge could be upgraded in 6 months 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 AR20060015225, dated 26 April 2007. 2. The applicant provides new argument that warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 9 June 1970 for a 3-year term. He completed training and was awarded military occupational specialty 67A (Aircraft Maintenance Apprentice). 4. On 10 April 1971, he departed his Fort Rucker unit in an absent without leave (AWOL) status and on 11 May 1971, he was dropped from the rolls as a deserter. He was apprehended by civilian authorities on 26 July 1973 and returned to military control. 5. He was detained at Allegheny County Prison in Pittsburgh, PA. He was released from the custody of civilian authorities and returned to military authorities at Fort Meade, MD, on 5 August 1973. 6. On 7 August 1973, court-martial charges were preferred against the applicant for one specification of being AWOL from 10 April 1971 to 26 July 1973. 7. On 10 August 1973, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged he understood: * if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate * he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life * he elected not to submit a statement in his own behalf 8. The immediate commander recommended disapproval of the discharge action because he believed that based on the evidence, the applicant was guilty of the charge, with 838 days of lost time, and his trial by a general court-martial was warranted. 9. On 4 September 1973, the applicant underwent a medical examination. He indicated that there had been no changes in his medical condition and that he was in poor health. On his Report of Medical History, he checked "YES" to: swollen or painful joints; dizziness or fainting spells; ear, nose, or throat problems; hearing loss; chronic or frequent colds; severe tooth or gum trouble; sinusitis; shortness of breath; palpitation or pounding heart; cramps in his legs; frequent indigestion; broken bones; lameness; painful or trick shoulder or elbow; recurrent back pain; trick or locked knee; foot trouble; frequent trouble sleeping; depression or excessive worry; and nervous trouble of any sort. The doctor noted the applicant had a back injury in December 1972 due to lifting and that his hearing was good, and indicated that he was medically qualified for separation. 10. The separation authority’s memorandum approving the applicant's discharge is not available for review. However, the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged on 4 September 1973 under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with service characterized as under other than honorable conditions. He completed 11 months and 8 days of active service and he had a total of 838 days of lost time. He was awarded or authorized the: * National Defense Service Medal * Marksman Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification badge with Grenade Bar 11. On 5 November 1979, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB denied his petition for a change to the characterization of service. 12. On 26 April 2007 (AR20060015225), the ABCMR also reviewed his discharge but found no reason or evidence to support upgrading his characterization of service. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 2. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 3. Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. His service did not rise to the level required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018331 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018331 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2