BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160008866 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: 24 April 2018 DOCKET NUMBER: AR20160008866 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 Army Board for Correction of Military Records set forth in Docket Number AR20040009064, dated 9 August 2005. __________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: 24 April 2018 DOCKET NUMBER: AR20160008866 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, in effect, reconsideration of his earlier request for an upgrade of his discharge under other than honorable conditions (UOTHC). 2. The applicant states, in effect, he requests consideration based on his records. 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 AR20040009064 on 9 August 2005. 2. The applicant was inducted into the Army of the United States on 8 February 1971 for a period of 2 years. 3. On 24 February 1971, he underwent a psychiatric evaluation in connection with his application for a hardship discharge. The examining psychiatrist found: * he met retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 * there were no disqualifying mental or physical defects sufficient to warrant his disposition through medical channels under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) * he had no severe character and behavior disorder with violent tendencies * he would adjust to further military service and further rehabilitative efforts would probably be productive * he was responsible, both to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. * he was cleared for any administration decision deemed appropriate by the command 4. On 5 April 1971, nonjudicial punishment was imposed against him under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his unit from on or about 19 March 1971 and remaining so absent until on or about 1 April 1971 (14 days). He did not demand trial by court martial; he did not submit matters in extenuation, mitigation, or defense; and he did not appeal the punishment. 5. His records contain Headquarters, 1st Infantry Division, Special Order Number 223, dated 11 August 1971, indicating he returned to military control from being absent without leave (AWOL) on 9 August 1971. 6. His records contain a DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 27 August 1971, showing his records were flagged for being AWOL on 12 August 1971 and dropped from the rolls (DFR) on 13 August 1971. 7. On 27 August 1971, the U.S. Army Personnel Control Facility Commanding Officer's Inquiry found there was no record of any evidence or suspected foul play or mental instability, which may have caused his absence. 8. His records contain a DA Form 188 (Extract Copy of Morning Report), dated 19 November 1971, showing he was AWOL from the organization effective 17 May 1971. 9. His records contain a DA Form 188, dated 2 December 1971, showing he was DFR of the organization effective 19 August 1971. 10. On 19 November 1971, court-martial charges were preferred against him for two specifications of being AWOL from on or about 17 May 1971 until on or about 9 August 1971 and from on or about 12 August 1971 until on or about 16 November 1971. 11. On 9 December 1971, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that by submitting his request for discharge, he understood he might be discharged UOTHC and furnished an Undesirable Discharge Certificate. As a result of such a discharge, he would be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of rights and benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. He elected to make a statement in his own behalf; however, this statement is not contained in his records. 12. On 13 December 1971, the applicant's unit commander recommended approval of his request for discharge for the good of the service. His commander stated that although the applicant had no previous convictions, the current charges indicated a prolonged absence and that he would never be a satisfactory Soldier. 13. On 13 December 1971, the applicant's intermediate commander recommended approval of his request for discharge for the good of the service. 14. On 22 December 1971, the separation authority approved his voluntary request for discharge under the provisions of Army Regulation 635-200 and directed issuance of an Undesirable Discharge Certificate. 15. On 6 January 1972, he was discharged for the good of the service in lieu of trial by court martial under the provisions of Army Regulation 635-200, chapter 10. He completed 4 months and 12 days of creditable service and he accrued 197 days of lost time. His service was characterized as UOTHC. 16. On 9 August 2005, the ABCMR denied his request for a discharge upgrade. The ABCMR determined his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights. The type of discharge directed and the reasons therefor were appropriate considering the facts of the case. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for 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 UOTHC is normally considered appropriate. b. 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. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. DISCUSSION: 1. The evidence of record shows he received nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL from 19 March 1971 until 1 April 1971. 2. Court-martial charges were subsequently preferred against him for two specifications of being AWOL from 17 May 1971 until 9 August 1971 and from 12 August 1971 until 16 November 1971. 3. His voluntary 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, was administratively correct and in conformance with applicable regulations. 4. His record of service included 197 days of lost 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) AR20160008866 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008866 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2