PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 April 2002
         DOCKET NUMBER: AR2001065298


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Melinda M. Darby		Member
Mr. John T. Meixell		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that a period of time lost due to being absent without leave (AWOL), from 15 October through 29 December 1999, be expunged from his records.

3. The applicant states, in effect, that he was charged with being AWOL from
15 October through 29 December 1999, when in fact he had been placed on excess leave on 18 August 1999. He indicates that he personally appeared before the Army Discharge Review Board (ADRB) and it was determined that his discharge, under the provisions of chapter 10, Army Regulation 635-200, was improper.

4. On 26 May 1998, he enlisted in the Army for 3 years and continuously served on active duty until 22 March 2001, at which time he was discharged under other than honorable conditions (UOTHC), under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.

5. On 15 August 1998, the applicant departed AWOL from his unit at Fort Bragg, North Carolina and remained away for 149 days. However, after being AWOL for 90 days, he contacted both his unit at Fort Bragg and the Personnel Control Facility (PCF), Fort Knox, Kentucky. Based on the guidance given him by both installations, he returned to military control and reported to the PCF at Fort Knox, where he was accepted into a provisional rehabilitation program, on 10 January 1999. During this period of AWOL, the applicant’s Fort Bragg unit took no formal action to drop him from the rolls of the organization and place him in a dropped from rolls (DFR) status, as authorized by regulation.

6. Upon reporting to the PCF, Fort Knox, the applicant was required to submit a request for discharge in lieu of court-martial as a precondition for acceptance into the provisional rehabilitation program. This request was held in abeyance by the chain of command. After eight months of evaluation, PCF officials endorsed his reassignment to a field unit.

7. On 11 June 1999, the commander, PCF, Fort Knox, prepared a memorandum for the commander, Total Army Personnel Command (PERSCOM), Alexandria, Virginia, requesting that the applicant be provided an assignment in accordance with paragraph 4-8, Army Regulation 640-10, which would indicate the applicant successfully completed rehabilitation. Although the applicant’s actual period of AWOL began on 15 August 1998, this memorandum indicated that he had been AWOL from 14 August 1998 through 10 January 1999 and that he had received field grade non-judicial punishment (NJP) for this offense. However, there is no record of this NJP on file.

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8. PERSCOM officials denied the PCF request that the applicant be given a new assignment because his unit at Fort Bragg had never placed him in a DFR status. Subsequent to this denial, the applicant’s Fort Bragg unit reportedly denied the applicant’s return to the unit and at that time took action to drop him from the rolls of the unit to prevent his return. This action was taken by Fort Bragg, in spite of the fact that the applicant had clearly been present for duty at the PCF, Fort Knox, for eight months and had successfully completed a rehabilitation program.

9. On 18 August 1999, the applicant was placed on excess leave for an indefinite period without pay and allowances pursuant to processing his administrative discharge in lieu of court-martial under the provisions of chapter 10, Army Regulation 635-200, for his initial period of AWOL from Fort Bragg.

10. During his absence, the applicant wrote to the garrison commander, Fort Knox, requesting that if discharged, he be provided a code that would allow his reenlistment; or that he be given an active duty assignment instead of being discharged.

11. On 30 September 1999, the garrison commander, Fort Knox, responded to the applicant’s request by letter. The garrison commander informed the applicant that his case had been discussed with the PCF commander and they agreed to go ahead and immediately order the applicant back to Fort Knox, in order to process him for an active duty assignment because they believed he would become a focused and productive soldier.

12. The record is unclear as to the specific date, but it does show that at some point prior to 15 October 1999, the applicant returned to duty at the PCF, Fort, Knox. However, by this time, the garrison commander that had made the commitment to process him for an active duty assignment had relinquished command, and the PCF chain of command failed to pursue this commitment.

13. A Personnel Action (DA Form 4187), dated 19 October 1999, prepared by the PCF, Fort Knox, changed the applicant’s duty status from present for duty to AWOL, effective 15 October 1999, and on 29 December 1999, the applicant returned to military control at the PCF, Fort Knox.

14. Upon his return to the PCF, the chain of command advised the applicant that he would be processed for separation under the provisions of chapter 14, Army Regulation 635-200, for misconduct. Several days later, he was informed that he could choose between an administrative discharge under the provisions of chapter 10, Army Regulation 635-200, or a court-martial. The applicant choose discharge in lieu of court-martial.

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15. On 20 January 2000, a court-martial charge was preferred against the applicant for his period of AWOL from 15 October 1999 through 30 December 1999. After consulting legal counsel and being advised of the basis for contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, and of the possible effects of an UOTHC discharge; the applicant voluntarily requested a second discharge in lieu of trial by
court-martial and admitted guilt to the charge preferred against him. At this point, the applicant again left Fort Knox in an excess leave status.

16. The record is void of any information clarifying the delay in the processing of the applicant’s request for discharge. However, it does contain a 1^st endorsement from the PCF commander, dated 6 December 2000, nearly
11 months after the applicant submitted his request, that recommends approval of the applicant’s request for discharge in lieu of trial by court-martial.

17. On 30 January 2001, the separation authority approved the applicant’s request and directed his UOTHC discharge and reduction to the lowest enlisted grade.

18. The separation document (DD Form 214) issued to the applicant on the date of his discharge confirms that he had completed a total of 2 years, 2 months, and 12 days of creditable active military service. It also indicates that he was on excess leave for 427 days, between 21 January 2000 and 22 March 2001; and that he had accrued 225 days of time lost due to AWOL (15 August 1998-
10 January 1999 and 15 October 1999-29 December 1999).

19. On 5 November 2001, the applicant appeared before the ADRB in Washington D.C. After hearing his testimony, the testimony of his counsel, and reviewing the record, the ADRB determined that the applicant’s discharge was improper and voted to upgrade it to fully honorable and to change the authority and reason for discharge to chapter 5, Army Regulation 635-200, Secretarial Authority.

CONCLUSIONS:

1. The Board notes the applicant’s contention that his period of AWOL from
15 October through 29 December 1999 be expunged from his records and it finds this claim has merit.

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2. Although the applicant was technically AWOL from 15 October through
29 December 1999, it appears he returned to duty at the PCF, Fort Knox, from his excess leave status sometime prior to this AWOL period. His return seems to have been based on a commitment made to him by the former garrison commander that he would be processed for an active duty assignment. The PCF chain of command failed to honor this commitment, and at this point the applicant again departed from the PCF. In view of these facts, the Board has serious doubt that the applicant understood his excess leave was no longer valid when he departed the PCF on 15 October 1999. Therefore, the Board concurs with the action taken by the ADRB to upgrade the characterization and change the reason for the applicant’s discharge.

3. In the opinion of the Board, the action taken by the applicant’s Fort Bragg unit to place him in a DFR status after he had been present for duty at the PCF, Fort Knox, for 8 months was inappropriate. As a result of this action, he was unjustly denied a new assignment, which he had a right to expect based on his successful completion of the PCF rehabilitation program.

4. The Board also finds that the failure of the PCF chain of command to honor its moral obligation to honor the commitment made to the applicant in September 1999, that he would be processed for an active duty assignment, coupled with the many inconsistencies and inordinate delays in his discharge processing by PCF officials, creates significant doubt as to the validity of the period of AWOL in question.

5. Therefore, the Board concludes that it would be appropriate, in the interest of justice and equity, to correct the applicant’s record by expunging the AWOL period from 15 October through 29 December 1999, and to show him in an authorized excess leave status for the entire period from 18 August 1999 through 22 March 2001, the date of his discharge.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by expunging the AWOL period from 15 October through 29 December 1999 from the record of the individual concerned; by showing he was in an authorized excess leave status from 18 August 1999 through 22 March 2001; and by providing him a separation document that reflects these changes.

BOARD VOTE:

__INW__ __MMD__ __JTM___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Irene N. Wheelwright__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001065298
SUFFIX
RECON
DATE BOARDED	2002/04/16
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2001/03/22
DISCHARGE AUTHORITY	AR 635-200 C5
DISCHARGE REASON	Sec Auth
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2.
3.
4.
5.
6.