BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160001877 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: 29 August 2017 DOCKET NUMBER: AR20160001877 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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AR2004105870, dated 21 December 2004. __________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: 29 August 2017 DOCKET NUMBER: AR20160001877 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 characterization of service from under other than honorable conditions to under honorable conditions (general). 2. The applicant states he feels he performed all of his duties as a Soldier but decided to leave to avoid going to prison. He doesn't feel he deserves to be treated as if he was never a Soldier and receive no benefits from his service. He believes his punishment was too harsh for being late to formation. He was discharged because he went absent without leave (AWOL); however, after a while he turned himself in and he was told to say he was quitting the Army for the good of the service. He claims he never did anything wrong except be late to formation for which he was court-martialed and sent to the stockade, which he soon left. Before all of this, he did everything he was told and did it well. He now regrets his decision to run and feels he should receive an upgraded discharge. 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 AR2004105870 on 21 December 2004. 2. The applicant provides a new argument, which warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 28 September 1972. 4. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 12 June 1973, for willfully disobeying a lawful order from a superior noncommissioned officer to prepare for movement * 6 November 1973, for willfully disobeying a lawful order from a superior commissioned officer to get a haircut 5. On 10 July 1973, the applicant pled guilty and he was found guilty by summary court-martial of being AWOL for the period 25 through 27 June 1973. He was sentenced to reduction to the rank/grade of private/E-1, to forfeit $114.00 per month for one month, to perform extra duty for a period of 45 days, and to be restricted for a period of 45 days. The sentence was adjudged and approved on 11 July 1973. 6. His record contains a DD Form 458 (Charge Sheet), dated 12 August 1975, which shows court-martial charges were preferred against him for being AWOL from on or about 9 to 13 August 1974 and from 14 August 1974 to 11 August 1975. 7. On 15 August 1975, the applicant met with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He acknowledged he understood he could request a discharge for the good of the service because court-martial charges had been preferred against him under the UCMJ, which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he was making his request by his own free will and had not been subjected to any coercion whatsoever by any person. He also acknowledged he had been advised of the implications attached to his request for discharge and understood that by submitting this request he was acknowledging he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. Moreover, he stated that under no circumstance did he desire further rehabilitation, for he had no desire to perform further military service. a. He acknowledged that, prior to completing his request for discharge, he had consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, and any relevant lesser-included offenses. Counsel also advised him of the facts that must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses that appeared to be available at the time, and the maximum permissible punishment if found guilty. b. He acknowledged he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He also acknowledged he had been advised of and he understood the possible effects of a punitive discharge and he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits. He also acknowledged he understood that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws. He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. c. He acknowledged he understood that once he submitted his request, he could withdraw it only with the separation authority's consent or without the separation authority's consent if his trial resulted in an acquittal or if his sentence did not include a punitive discharge. The applicant submitted a statement on his own behalf in which he claimed he went AWOL because he wanted to check on his father and brother. He had failed to keep in touch with them so he requested a leave of absence, which was denied. He claimed his brother had been killed and his father was sick; therefore, he felt he would be of no use to the Army and he requested the discharge to take care of what little family he had left. He further stated that after being AWOL for so long he could no longer readjust to military life. 8. On 18 August 1975, the applicant's immediate and intermediate commanders recommended approval of his request with the issuance of an Undesirable Discharge Certificate. 9. On 19 August 1975, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 10 September 1975, he was discharged accordingly. 10. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 1 year, 10 months and 21 days of creditable active service with 388 days lost time. 11. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides that an individual who has committed an offense(s), the punishment for which, under the UCMJ and Manual for Court-Martial United States, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The request for discharge may be submitted at any time after court-martial charges are referred. Commanders will insure that an individual will not be coerced into submitting a request for discharge for the good of the service, and the member will be given a reasonable amount of time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. Consulting counsel will advise the member concerning the elements of the offense or offenses charged, burden of proof, possible defenses, possible punishments, provisions of this chapter, requirement of voluntariness, type of discharge normally given under the provisions of this chapter, rights regarding the withdrawal of his request, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. If the member, after receiving counseling, elects to submit a request for discharge for the good of the Service, he will personally sign a written request, certifying that he has been counseled, that he understands his rights, that he may receive a discharge under other than honorable conditions, and that he understands the adverse nature of such a discharge and the possible consequences. An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the Service. b. Paragraph 1-9d states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditional upon proper military behavior and proficient performance of duty during the member's current enlistment current period of service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and continuous in doing his assigned tasks, he may be furnished with an honorable discharge. c. Paragraph 1-9e states a general discharge is a separation from the Army under honorable conditions of an individual whose military service is not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. Notwithstanding the applicant's contentions that he "performed all of his duties as a Soldier" or that "he did everything he was told and did it well," the evidence of the record contains a history of UCMJ and AWOL. His records also show he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 2. The evidence also shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 3. The ABCMR does not grant requests for upgrade of discharges solely to make an applicant eligible for veterans' benefits. The Board decides every case individually, based upon its merits when an applicant requests a change in his or her discharge. The granting of benefits is not within the purview of the ABCMR. Any questions regarding eligibility for benefits should be addressed to the VA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001877 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001877 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2