RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         8 December 2005
      DOCKET NUMBER:  AR20050006210


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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, in effect, that his under other than honorable
conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that after being wounded in action
while serving in the Republic of Vietnam (RVN), he was hospitalized at Fort
Polk, Louisiana for 61/2 months and was offered a medical discharge.  He
claims that he turned down the medical discharge because he felt he was
good at what he did and wanted to make a career of the military.  He states
that he was subsequently sent to Fort Lewis, Washington, where he served in
MOS 13B (Artillery Gunner) and became the top gunner.  He further states
that after two years, his entire unit was transferred to Fort Bliss, Texas,
where he reenlisted for an overseas assignment to Berlin, Germany.  He
claims that prior to his permanent change of station (PCS) to Berlin, he
took 30 days of leave and this is where his problems began.

3.  The applicant claims he was given reassignment orders to Berlin, but
was not given a port call for movement to Germany, and he was told that if
he did not receive his port call prior to his leave ending, he should
contact the personnel office for further instructions.  He states that
after numerous calls to his personnel officer, he was informed they had no
orders on him and he should report back to the holding unit, which he did.
He further states that after two weeks with no pay, he went to finance to
get paid and he was informed they had no records on him. At that time, he
claims he was told to go home and wait orders, and that he should stay in
touch. In May 1975, he went to a Department of Veterans Affairs (VA)
officer to receive benefits for his service connected wounds, and at that
time he was informed he needed to have his separation document (DD Form
214) to clarify his benefit eligibility status.  This is when he contacted
Army officials to obtain a separation document.

4.  The applicant provides the following documentation in support of his
application:  Self-Authored Letter; Separation Documents (DD Forms 214)
(2); Disposition Form (DA Form 2496); Letters of Commendation (3);
Enlistment Contract (DD Form 4); and Headquarters, 27th Surgical Hospital
General Orders Number 26.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 September 1982.  The application submitted in this case
is dated 28 March 2005.

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’s record shows he initially enlisted in the Regular Army
and entered active duty on 27 February 1970.  He was trained in and awarded
military occupational specialty (MOS) 13A (Field Artillery).

4.  On 6 December 1971, the applicant was honorably discharged for the
purpose of immediate reenlistment.  On 7 December 1971, he reenlisted for a
period of six years, and for an overseas assignment.

5.  The applicant’s record shows he served in the Republic of Vietnam (RVN)
for 9 months and that during his active duty tenure, he earned the
following awards: National Defense Service Medal (NDSM); Army Commendation
Medal (ARCOM); Vietnam Service Medal (VSM); RVN Campaign Medal; and Purple
Heart (PH).

6.  The applicant’s record also shows he accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on 10 November 1971, for failure to obey a lawful order.

7.  On 21 July 1982, the Chief, Records Services Division, of the Enlisted
Records and Evaluation Center (EREC), after reviewing the applicant’s
Military Personnel Records Jacket (MPRJ) determined there were no records
verifying that the applicant was ever discharged from the Army.  As a
result, the applicant was provided a letter of notification of his
discharge eligibility.

8.  The EREC discharge eligibility letter also informed the applicant that
he was in a deserter status and was eligible for discharge in absentia with
an UOTHC discharge.  He was also notified that he could be deprived of many
or all of his Veteran benefits administered under Federal and State laws
and that he could encounter substantial prejudice in obtaining employment
and other benefits.  Further, he was notified that he had forty five days
from the date of the letter to submit a statement in his own behalf.  On 26
July 1982, the applicant signed the certified return receipt confirming he
had received the EREC discharge eligibility letter of notification.

9.  On 16 September 1982, EREC officials, based on a review of existing
documents on file pertaining to the applicant, made an administrative
determination that he went absent without leave (AWOL) from his gaining
organization on 3 November 1974, which was never reported AWOL.  Further, a
conclusion was made that the applicant had not been under military control
since 3 November 1974, and was eligible for discharge in absentia.

10.  On 16 September 1982, after receiving no response from the applicant
to its 21 July 1982 notification letter, EREC executed the applicant’s
discharge in absentia.  A copy of his discharge orders, discharge
certificate and DD Form 214 confirming his discharge with an UOTHC
discharge, effective on 16 September 1982, were provided to the applicant.
The DD Form 214 he was issued shows he was separated under the provisions
of chapter 14, Army Regulation 635-200, by reason of misconduct
(desertion), after completing a total of 2 years,
10 months and 28 days of creditable active military service and accruing
2,869 days of time lost due to AWOL.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-
year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  An under other than honorable
conditions (UOTHC) discharge is normally appropriate for members separated
under these provisions.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he had no time lost and was not a
deserter was carefully considered.  However, the evidence of record
confirms that on
16 September 1982, EREC officials administratively determined the applicant
departed AWOL from his organization on 3 November 1974, and that he had not
been under military control since.  After failing to respond to the EREC
discharge eligibility notification letter and/or to submit a statement in
his own behalf, the applicant was separated in absentia under Chapter 14,
Army Regulation
635-200, by reason of misconduct (desertion).

2.  The applicant’s discharge processing was accomplished in accordance
with the applicable regulation.  All requirements of law and regulation
were met and his rights were fully protected throughout the separation
process.

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 16 September 1982.  Therefore, the
time
for him to file a request for correction of any error or injustice expired
on
15 September 1985.  He failed to 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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RT___  __JBG __  ___SWF_  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____Richard T. Dunbar  ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006210                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-12-08                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 14 Deserter                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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