RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 February 2004
         DOCKET NUMBER: AR2003089157

         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. Klaus P. Schumann		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Curtis L. Greenway		Member
Ms. Regan K. Smith		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

2. The applicant states, in effect, that upon completion of basic and advanced individual training he was given 30 days leave and told to report to the Federal Center in Battlecreek, Michigan upon completion of his leave. He further states that, although his written orders required him to report to Fort Dix, New Jersey, he reported to the Federal Center in Battlecreek, Michigan as he was instructed to do prior to departing on leave.

3. He states that the Federal Center could not locate him in the "system" although he presented them with a copy of his reassignment orders to Fort Dix. He further indicates that the Federal Center contacted the Fort Dix personnel office and no one there could verify his written orders. He was instructed by the Federal Center to continue to call Fort Dix, which he did for a six-month period. Subsequently, he was instructed to report back to the Federal Center where he was transferred to Fort Riley, Kansas and placed in a special processing unit with others that were in an absent without leave (AWOL) status. He further states that he does not believe he did anything wrong and believes he would have been a fine soldier had he been allowed to serve.

4. The applicant provides, in support of his application, a self-authored letter, dated 1 April 2003.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice which occurred on 21 April 1971. The application submitted in this case is dated 1 April 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant was inducted into the Army for a period of 2 years on 5 June 1969. He completed basic and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 11E (Armor Crewman). On 21 April 1971, he was separated from active duty with an UD.

4. The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition. His separation document (DD Form 214) shows, in Item 30 (Remarks), that he had accrued 416 days of lost time for being AWOL for the period 24 November 1969 through 13 January 1971. This period of AWOL is corroborated in Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal ETS) of his Enlisted Qualification Record (DA Form 20).

5. The applicant's military records contain a copy of Headquarters, U.S. Army Training Center Special Orders Number 266, dated 23 September 1969, which assigned the applicant to Fort Dix, New Jersey, for further assignment to Germany.

6. The applicant's military records also contain a copy of Headquarters, U.S. Army Training Center Special Orders Number 308, dated 4 November 1969, which shows that the applicant was to report to Fort Dix not later than 1700 hours on 24 November 1969.

7. The applicant's DA Form 20 shows, in Item 33 (Appointments and Reductions), that he was promoted to private/E-2 (PV2) on 8 August 1969 and that he was reduced to private/E-1 (PV1) on 14 April 1971. His records also contain a copy of Headquarters, 1st Infantry Division and Fort Riley Special Orders Number 110, dated 20 April 1971, which reduced the applicant to the grade of PV1, effective 14 April 1971.

8. The applicant's military records contain a copy of a morning report extract
(DA Form 188), dated 5 April 1971. This document shows, in Item 6 (Date, Name, Service Number, Grade, Remarks, and Authentication Extracted From Morning Report), that the applicant was dropped from the rolls of the Fort Dix Replacement Detachment for being AWOL since 24 November 1969. It also shows that he surrendered to military authorities and was brought back under military control on 14 Jan 1971 in Detroit, Michigan.

9. On 4 March 1971, a psychiatric evaluation was completed on the applicant. The examining psychiatrist found that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right and that he had the mental capacity to understand and participate in board proceedings.

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10. Further, the psychiatric evaluation confirmed that the applicant had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. It was also concluded that did not manifest a psychosis or neurosis, he would not adjust to military service and further rehabilitative efforts would be nonproductive.

11. The applicant's military records contain a statement, dated 25 March 1971, that was completed by a unit official who conducted an investigation into the applicant’s AWOL. In this statement, the applicant acknowledges that he was AWOL for the period 24 November 1969 through 13 January 1971, and that he went AWOL in order to support his family. He also acknowledges that he knew that he was to report to Fort Dix and that he desired a discharge from the Army.

12. On 26 January 1971, the applicant's unit commander recommended that separation action be initiated against him under the provisions of Army Regulation 635-206. The reason cited for this action by the commander was the applicant’s AWOL period from 24 November 1969 through 12 Jan 1971, a total of 416 days.

13. On 6 April 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights. Subsequent to this counseling, the applicant chose to waive consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel and he decided not to submit statements on his own behalf. On this date, the applicant was also specifically counseled regarding the substantial prejudice he could encounter in civilian life based on receiving an undesirable discharge, and that as a result he could be ineligible for many or all veterans benefits under both Federal and state laws.

14. On 14 April 1971, the separation authority approved the applicant’s separation and directed that he receive an UD, by reason of misconduct.

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15. The record gives no indication that the applicant requested an upgrade to his discharge from the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

16. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

DISCUSSION AND CONCLUSIONS:

1. The applicant contends that he was unable to obtain verification from personnel officials that he was to report to Fort Dix after his leave ended and that he attempted to contact Fort Dix personnel officials for six months to obtain verification. However, the evidence of record clearly shows that he admitted that he understood that he was required to report to Fort Dix upon completion of his leave and that he intentionally went AWOL for 416 days in order to support his family. Therefore, the available evidence does not support the applicant's contention.

2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his short and undistinguished overall record of service, which includes 416 days of AWOL accrued in a period of less than two years.

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

4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 April 1971; therefore, the time for him to file a request for correction of any error or injustice expired on 20 April 1974. However, he did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

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BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

_RKS___ __SAC___ __CLG___ DENY APPLICATION

1. The Board determined that 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.

2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




                  Samuel A. Crumpler
                  CHAIRPERSON

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INDEX

CASE ID	AR
SUFFIX
RECON
DATE BOARDED	2004/02/03
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1971/04/21
DISCHARGE AUTHORITY	AR635-206
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.