RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   30 August 2007
	DOCKET NUMBER:  AR20070004196 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Bernard Ingold

Chairperson

Mr. Thomas Ray

Member

Mr. Gerald Purcell

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 correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he would like the date of his discharge changed from 14 June 1988 to 3 November 1971.

3.  The applicant provided, through his Senator, copies of his DD Form 214, promotion orders, reassignment orders, his DA Form 20 (Enlisted Personnel Record) and a personal typed journal. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was inducted into the United States Army on 23 March 1970.  Records show that he completed basic combat and advanced individual training and awarded military occupational specialty 16F (Light Air Defense Artillery Crewman).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.  Records show that he was assigned to Battery D, 1st Battalion, 44th Artillery and served in the Republic of Vietnam during the period 17 August 1970 to 21 January 1971.  The applicant's expiration of term of service (ETS) was 22 March 1972.  

3.  The applicant's records do not show any significant acts of valor during his military service. 

4.  The applicant's personnel service records reveal an extended history of unauthorized absences.  On 12 July 1971, a Special Court-Martial convicted him of violating Article 86, Uniform Code of Military Justice (UCMJ), for 85 days AWOL from his unit in the Republic of Vietnam from on or about 26 March 1971 to his apprehension by civil law enforcement authorities in Geary County, Oklahoma (Fort Sill), on 21 June 1971.  

5.  On 30 July 1971, a Special Court-Martial at Fort Riley, Kansas, convicted him of violating Article 95, UCMJ, for escaping from lawful confinement, to wit, the U.S. Army Correctional Training Facility, Fort Riley, Kansas, on or about 21 July 1971.  On 10 August 1971, he was sentenced to confinement at hard labor for 4 months and forfeiture of $75.00 per month for six months.  On 
15 September 1971, the sentence was adjudicated and the forfeiture of pay in excess of $50.00 per month for 4 months was suspended until 14 January 1972.

6.  On or about 15 November 1971, the applicant failed to report to his new duty station Fort Bliss, Texas.  His unit commander reported him AWOL, then 30 days later was dropped from the rolls for desertion.  He surrendered to military authorities at Fort Sill, Oklahoma, on 5 May 1988.  His time lost due to AWOL was 6,016 days.

7.  On 27 May 1988, the applicant's unit commander charged him with AWOL from on or about 15 November 1971 to 5 May 1988 under the provisions of Article 86, UCMJ.  On 13 May 1988, he requested a discharge from the Army under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations), in lieu of trail by court martial.  Records show the applicant elected not to receive a medical or psychological evaluation prior to his separation. 

8.  On 14 June 1988, the applicant was discharged from the Regular Army at Fort Sill, Oklahoma.  Block 28 (Narrative Reason for Separation) of his DD Form 214 shows he was discharged for the good of the service in lieu of trial by court martial.  His characterization of service was under other than honorable conditions.  The DD Form 214 issued on this date lists time lost in Block 29 (Dates of Time Lost During this Period) as "710326-711102; 711115-880504" under the provisions of Title 10, U. S. Code 972.

9.  The applicant's Senator wrote on behalf of the applicant requesting that the applicant's records be reviewed and his discharge upgraded to general.  The Senator states, in effect, that the applicant served honorably in the Republic of Vietnam for 7 months prior to his return to the United States on rest and recuperation leave.  The applicant did not return to duty from his rest and recuperation leave in 1971 due to post-traumatic stress disorder.  The Senator writes the applicant was awarded the Vietnam Service Medal and the Army Service Ribbon for his service.  

10.  On 24 October 1994, the Army Discharge Review Board denied the applicant's appeal to upgrade his discharge.

11.  On 26 April 1995, the ABCMR denied the applicant's request, ABCMR Docket Number AC90-06273, to upgrade his discharge from under other than honorable conditions to a general discharge.  

12.  On 6 August 1999, the applicant requested through his Senator a reconsideration of ABCMR Docket Number AC90-06273, to upgrade his discharge.  ABCMR staff determined that no new evidence was presented to support reconsideration of its original decision on 26 April 1995.  

13.  On 30 August 2005, ABCMR responded to the applicant's second request for correction to his DD Form 214, specifically a discharge characterization of service upgrade.  ABCMR returned the application without action stating the applicant had exhausted all administrative remedies for a characterization of service upgrade.  

14.  Title 10, U. S. Code, section 972, states, in pertinent part, that enlisted Soldiers are required to make up for time lost.  A Soldier who is returned to military duty after a period of being absent from his unit for more than one day without proper authority or who deserts is required to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.  

15.  Army Regulation 630-10 (Absence without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) states, in pertinent part, that a Soldier who returns to military control is attached to the supporting Personnel Confinement Facility.  The effective date of attachment is the date the absentee returned to military control or the date the Soldier is located and brought under military control or custody.  

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through his Senator, that his date of discharge should be 3 November 1971 and not 14 June 1988 as listed on his DD Form 214.  

2.  Public Law states, in effect, that a Soldier who is absent without leave for one day or more or whom deserts will make up the time lost when returned to military control.  The law requires Soldiers to complete their full term of contractual obligation, which is two years of service for this applicant.  The applicant was in a deserter status, both a violation of federal law and military regulations at the time of his ETS in 1972.  The applicant returned to military control on 5 May 1988.  At that time, the applicant had accrued 6,016 lost days which equates to 16 years, 5 months and 27 days.  The applicant's new ETS date based on Title 10, U. S. Code, section 972, should have been 3 November 2004. The applicant voluntarily requested a chapter 10 discharge in lieu of trial by court martial and was discharged on 14 June 1988 prior to his adjusted ETS date.

3.  The applicant shows through his own personal statements that he was AWOL.  The applicant has not demonstrated or provided either compelling circumstances or sufficient evidence to warrant changing the dates of his AWOL and desertion status.  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 this requirement.

4.  To grant the applicant's request would be giving him a benefit not afforded to others. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__BI ____  __TR ___  __GP ___  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

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.






_____ Bernard Ingold_______
          CHAIRPERSON




INDEX

CASE ID
AR20070004196
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070830
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.
123.01
2.

3.

4.

5.

6.