RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 April 2005
      DOCKET NUMBER:  AR20040006208


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Curtis Greenway               |     |Member               |

      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 that his reason for discharge be changed from
Misconduct-Desertion.

2.  The applicant states, in effect, that his girlfriend was going to have
an abortion and he requested permission to go home for the weekend to
prevent it from happening.  The base commander denied his request and he
decided to go against orders.  He turned himself in at Fort Devens,
Massachusetts for being absent without leave (AWOL).  After being detained,
he was released to return back to Fort Jackson, South Carolina and he
decided to go AWOL again.

3.  The applicant states that he was apprehended and placed back in
military control at Fort Devens.  He continues that he was assigned to the
Personnel Confinement Facility (PCF) at Fort Dix, New Jersey for
reassignment.  He further states he was released on the weekends to go home
at his own expense because the dining facility was closed.

4.  The applicant states that he was assigned a Judge Advocate General
(JAG) officer to work his case.  He could not be identified in the Army
system and after a small hearing was concluded it was decided that he would
be allowed to go home to his parents instead of being at roll call.  He was
told to call in everyday to check on his orders.  After months had passed,
he went back to work and did not hear from the military.

5.  The applicant states after some time past his original separation date
had elapsed he hired a lawyer to put closure to his enlistment.  He states
that after a year the lawyer made arrangements to go to Fort Benjamin
Harrison before a review board and he was issued a general discharge from
the Army.

6.  The applicant states that he is taking full responsibility for being
AWOL from the Army.  He had waited patiently for orders to come from Fort
Dix and had no control of the paper work or what happened.  He further
states that he did not run or desert from his obligation.

7.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 21 July 1977.  The application submitted in this case is dated
14 August 2004.

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 limitations 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 enlisted on 23 August 1972 for a period of three years.
Records show he did not complete basic combat training or advanced
individual training at Fort Jackson, South Carolina.

4.  Special Orders Number 276, Headquarters, US Army Training Center,
Infantry and Fort Dix, New Jersey, dated 2 October 1972, show that the
applicant returned to military control at Fort Devens, Massachusetts on 23
September 1972.

5.  On 3 October 1972, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL
for the periods 1 September 1972 through 2 September 1972 and 6 September
1972 through 23 September 1972.

6.  Special Orders Number 293, Headquarters, US Army Training Center,
Infantry and Fort Dix, New Jersey, dated 19 October 1972, shows that the
applicant was assigned to C Company, 3rd Battalion, 2nd Basic Training
Brigade at Fort Dix on 20 October 1972.

7.  A DA Form 3836 (Notice of Return of United States Member from
Unauthorized Absence), prepared by the US Army Deserter Information Point,
shows that the applicant was absent from 16 December 1972 until returning
to military control on 20 July 1977.

8.  On 19 July 1977, the applicant's counsel recommended to the Staff Judge
Advocate (SJA) at Fort Benjamin Harrison that the applicant be granted an
honorable discharge.  His counsel stated this appears to be a "go home and
wait" case.  He continued that "it is apparent that from the records now
available the government would not be able to establish the alleged
unauthorized absence in court and would have great difficulty in an
administrative hearing."



9.  The counsel further stated that the applicant was on active duty, was
placed on excess leave soon after and had continued in that status until
the present.  He
continues that he called the FBI (Federal Bureau of Investigation) in
Washington and they had no record on the applicant that showed that the
applicant was being carried as a deserter.

10.  On 21 July 1977, the SJA recommended that the applicant be discharged
from the Army with an under honorable conditions discharge.

11.  On 21 July 1977, the appropriate authority approved the recommendation
to separate the applicant and directed he receive an under honorable
conditions discharge under the provisions of chapter 15 (Misconduct-
Desertion and Absence Without Leave) of Army Regulation 635-200 (Personnel
Separations) for misconduct-desertion.  On 21 July 1977, he was separated
after completing 3 months and 8 days of creditable active service and 1675
days of lost time due to AWOL.  Item 27 (Remarks) of his DD Form 214 shows
the authority as chapter 15, Army Regulation 635-200 and the reason as
"Misconduct-Desertion."  It also shows the SPD (Separation Program
Designator) as JKF.

12.  Army Regulation 635-200, chapter 15, in effect at the time, governed
separation of personnel for misconduct-desertion and absence without leave.
 It stated, pertinent part, that this chapter established policy and
prescribed procedures for elimination of enlisted personnel for misconduct
by reason of absence without leave or desertion.  This regulation furnished
guidance to commanders exercising general court-martial jurisdiction and
outlined the conditions and procedures for discharge, without trial, of
absentees or deserters who had returned to military control.

13.  Army Regulation 635-200, chapter 14, the regulation currently in
effect, establishes current policy and prescribes procedures for separating
personnel for misconduct because of minor disciplinary infractions, a
pattern of misconduct, commission of a serious offense, conviction by civil
authorities, desertion, and absence without leave.  A discharge under other
than honorable conditions is normally appropriate for a Soldier discharged
under this chapter.  However, the separation authority may direct a general
discharge if such is merited by the Soldier's overall record.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes),
the regulation currently in effect, prescribes the specific authorities
(regulatory, statutory, or other directives), the reasons for the
separation of members from active military service, and the separation
program designators to be used for these stated reasons.  The regulation
shows that the separation program designator “JKF” as shown on the
applicant’s DD Form 214 currently specifies the narrative reason for
discharge as “Misconduct.”  The SPD "JKF" at the time of the applicant's
discharge specified a narrative reason for discharge as "Misconduct-
Deserter."

DISCUSSION AND CONCLUSIONS:

Records show that the applicant admitted to having gone AWOL but denied
being a deserter.  The characterization of service for his offense could
have warranted a discharge under other than honorable conditions.  However,
evidence of record shows he received an under honorable conditions
discharge, so it appears personnel at Fort Benjamin Harrison believed his
explanation that he never intended to be a deserter.  Therefore, it is
equitable that his narrative reason for discharge be changed to
"misconduct" under current standards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ JS ___  __ SLP __  __ CG __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that the DD Form 214 for the period ending 21
July 1977 of the individual concerned be corrected in item 27 (Reason) to
delete "Misconduct-Desertion" and to show "Misconduct."




                            _____ John Slone _____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006208                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |12 April 2004                           |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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