RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            18 MAY 2004
      DOCKET NUMBER:   AR2003095216


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Mr. John Denning                  |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that information regarding his AWOL
(absent without leave) and deserter information be expunged from his Army
records thereby resulting in the deletion of that same information from FBI
(Federal Bureau of Investigation) files.

2.  The applicant also requests that his rank of E-4 be restored.

3.  The applicant states, in effect, that in 1978 he appeared before the
Army Discharge Review Board who unanimously voted to upgrade his general
discharge to a fully honorable discharge after he showed “evidence that
[he] had never received orders to appear at Ft. Dix….”  He states that same
board “went further” and determined that his “time in the service was
without a disciplinary offense.”

4.  The applicant states, however, that in January 2002 he attempted to
purchase an antique handgun but was told there would be a delay in his
ability to purchase the weapon “because during a check of [his] record an
FBI number was found along with other personal information.”  He states
that he ultimately found out that the report related back to his having
been reported as AWOL and a deserter from the Army.

5.  The applicant provides a copy of the 1978 Army Discharge Review Board
summary and a copy of an undated letter to the Army Inspector General in
which he relates how he came to find out that the information he thought
had been corrected in 1978 had in fact not been corrected.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant enlisted in
the United States Army Reserve for a period of 6 years on 24 November 1970.
 As part of his enlistment processing, the applicant authenticated a
document indicating that he understood that if he failed to attend unit
training without proper authority he would be ordered to active duty for a
period of 24 months, less any period of active duty, active duty for
training, or annual field training which may have been served previously.

2.  The applicant successfully completed basic and advanced individual
training and by November 1972 he had been promoted to pay grade E-4.




3.  In July 1973 the applicant’s unit commander initiated an action
requesting that the applicant be discharged for hardship reasons associated
with the health of his grandmother.  However, by November 1973 the action
had been returned to the unit because Army Regulations did not provide for
a hardship discharge resulting from issues associated with grandparents,
unless the grandparent stood “in loco parentis” for the Soldier’s parents
for 5 continuous years when he was a minor child.

4.  A statement from the applicant’s unit commander, contained in the
applicant’s file, indicates that the commander informed the applicant in
November 1973 of the question regarding his grandmother’s status.  The
commander indicated that the applicant was told to bring in the information
regarding his grandmother, and that he was required to attend drill or he
would “start receiving unexcused absences.”  The commander noted that the
applicant failed to bring in the required documents and failed to attend
scheduled drills as he had been directed.

5.  On 2 March 1974 the applicant signed for a certified letter which
notified him that he had unexcused absences from drill in February 1974.
The notification document informed him that a member who accrued five or
more unexcused absences in any one-year period was subject to being reduced
to pay grade E-2 and being ordered to active duty.  On 20 March 1974 the
applicant signed for another certified letter indicating that he had an
unexcused absence in March and that his unexcused absences now totaled
five.

6.  On 9 May 1974 the applicant’s unit dispatched a third certified letter
informing the applicant that he would be required to enter active duty
“about 30 days after this notification” and that he would be reduced to pay
grade E-2.  The notification was addressed to the same address as the two
previous notifications.  The notification was returned to the applicant’s
unit by the post office with the notation that as of 24 May 1974 the
certified letter remained “unclaimed.”

7.  In July 1974 the applicant’s unit initiated documents to have the
applicant ordered to active duty as an unsatisfactory participant.  Orders
reducing him to pay grade E-2 were finalized on 23 September 1974.  The
applicant signed for a certified letter containing the reduction notice on
30 September 1974.  However, the notification that he was being called to
active duty was returned to the unit as undeliverable with the notation
that addressee had “moved [and] left no address.”

8.  The address utilized by the applicant’s unit for notification purposes
appeared to be his grandmother’s address based on information contained on
the applicant’s emergency notification document.



9.  The actual orders, involuntarily calling the applicant to active duty,
were issued on 21 October 1974.  The applicant’s reporting date for active
duty was established as 25 November 1974.  The applicant’s file does not
contain a postal receipt acknowledging delivery, or a returned “as
undeliverable” indication.

10.  The applicant failed to report for active duty as the orders directed
and he was placed in an AWOL status effective 25 November 1974.

11.  A letter addressed to the applicant’s mother at the applicant’s
grandmother’s address was issued on 10 December 1974 informing the
addressee that her son was AWOL.

12.  On 23 December 1974 the applicant was dropped from the rolls of the
Army as a deserter.  As part of the deserter information process, a
Department of the Army Form 3835 (Notice of Unauthorized Absence from the
United States Army) was initiated and copies were distributed by the United
States Army Deserter Information Point to various agencies, including the
FBI, in accordance with the provisions of Army Regulation 190-9.  That same
regulation provides the authority for entering a deserter’s name into the
NCIC (National Crime Information Center) database to support civilian
police apprehension assistance.

13.  The NCIC is maintained by the Criminal Justice Information Services
Division of the FBI.  It is a computerized index of criminal justice
information and is available to Federal, state, and local law enforcement
and other criminal justice agencies.  The purpose for maintaining the NCIC
system is to provide a computerized database for ready access by a criminal
justice agency making an inquiry and for prompt disclosure of information
in the system from other criminal justice agencies about crimes and
criminals.  This information assists authorized agencies in criminal
justice and related law enforcement objectives, such as apprehending
fugitives, locating missing persons, locating and returning stolen
property, as well as in the protection of the law enforcement officers
encountering the individuals described in the system.  Data contained in
NCIC is provided by the FBI, federal, state, local and foreign criminal
justice agencies, and authorized courts.

14.  On 26 December 1974 a second letter was dispatched to the applicant’s
mother, at the grandmother’s address, informing her that her son had been
dropped from the rolls for the Army effective 23 December 1974.

15.  On or about 18 August 1975 the applicant returned to military control
at Fort Dix, New Jersey.  His records do not indicate if he surrendered to
military




authorities or was apprehended by civilian authorities.  On 20 August 1975
the United States Army Deserter Information Point informed previously
notified agencies, including the FBI, that the applicant returned to
military control and that the “NCIC entry for this absence has been cleared
by the U.S. Army, nullifying the status of this individual as a deserter.”

16.  When charges were preferred, the applicant requested discharge under
the provisions of Army Regulation 635-200, Chapter 10, in lieu of being
tried by court-martial.  However, the applicant’s file contains two
handwritten notations; one indicating that he “claims on interview sheet he
did not receive orders” and another that the Army “does not have receipt
for orders.”  One note also indicates that the applicant “knew he had a
possible lack of jurisdiction but elected to request chap[ter] 10.”

17.  The court-martial convening authority at Fort Dix notified officials
at the Army’s personnel center that he had made “a judicial determination
that the court lacks jurisdiction over the person in that the government
failed to properly activate the accused” and accordingly, requested
“appropriate disposition instructions concerning the separation or
discharge of the accused….”

18.  Army Regulation 635-200, paragraph 5-12, in effect at the time,
provided that in those instances where the convening authority of a general
or special court-martial jurisdiction reasonably believes that the Army may
lack jurisdiction over a member presently under his jurisdiction he may
“cause a thorough inquiry to be initiated immediately.”  If the claim of
lack of jurisdiction is based upon an apparent failure to meet all the
regulatory requirements for the involuntary activation of a reservist
because of his unsatisfactory participation in the United States Army
Reserve unit training, inquiry will be made for the missing documentation.
If, as a result of the inquiry, the convening authority concludes that the
Army lacks jurisdiction over the Soldier, he will take action to release
the individual from active duty and return him or her to their United
States Army Reserve Status.

19.  Ultimately, the applicant’s request for a chapter 10 discharge was
denied and he was discharged under provisions of Army Regulation 635-200,
paragraph 5-12 which provided for separation for “lack of jurisdiction.”
The applicant was discharged from the Regular Army on 10 October 1975, in
pay grade E-2, and issued a general discharge certificate.  He was
discharged “as a reservist of the Army” the same day.  His separation
document indicated he had 1 month and 23 days of creditable service and 265
days of lost time.




20.  In 1978 the Army Discharge Review Board determined that the
applicant’s “time in the service appeared without a disciplinary offense”
and determined that the appropriate characterization could have been as
fully honorable.”  Therefore the board “voted to upgrade to fully
honorable.”  They did not disturb the AWOL period and it continued to be
reflected on his new discharge document issued after the Army Discharge
Review Board’s action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was well aware, or should have been well aware of the
ramifications of his failure to attend unit drill sessions.  He
acknowledged that understanding in his enlistment contract and was so
informed in at least two of the notification documents which he signed for
informing him that he had unexcused absences from drill.

2.  As a result of the applicant’s unexcused absences, which he was well
aware of, he was appropriately reduced to pay grade E-2.  The reduction was
valid and not contingent on whether or not he received the orders notifying
him that he was being involuntarily ordered to active duty.  As such, there
is no basis for restoring his grade.

3.  When the applicant failed to report for active duty as scheduled,
members of the Army’s law enforcement agencies took appropriate action to
report him as a deserter in accordance with the provisions of Army
Regulation 190-9, which included the notification of the NCIC.  When he
returned to military control, action was taken to report that same
information via appropriate law enforcement agencies.  There was no error
or injustice in the procedures utilized to report the applicant as a
deserter or when he subsequently returned to military control.

4.  The fact that the court-martial convening authority questioned whether
the applicant received his activation orders and ultimately concluded that
he may not have and as such determined that he “lacked jurisdiction” to
court-martial the applicant did not invalidate the actions taken by law
enforcement agencies to report the applicant as a deserter, it merely
precluded the applicant from being court-martialed.  The same argument can
be made for the upgrading of the character of his discharge by the Army
Discharge Review Board in 1978.  The fact that the applicant’s AWOL
continued to be recorded on his separation documents supports this
conclusion.

5.  While the continued presence of that information in appropriate law
enforcement files may cause a hardship for the applicant there is no
indication that it was an erroneous or invalid action or that the reports
were not filed appropriately within the guidelines established by governing
regulations.


6.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RW___  __RA ___  __JD  ___  DENY APPLICATION

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 for correction of the
records of the individual concerned.





            __   Raymond Wagner_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003095216                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040518                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |