RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	   23 August 2007
	DOCKET NUMBER:  AR20070004477 


	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. Lester Echols

Chairperson

Mr. John Meixell

Member

Mr. Richard Dunbar

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 discharge documents.

2.  The applicant states that the time lost on his discharge document should be 148 days and not 648 days.  The applicant states the effective date of his discharge is based on a separation date in the year 1972, when he believes it should be in the year 1970.

3.  The applicant provides through his Congressman his DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), copies of his discharge papers, a letter from his congressman, a hand written chronological list of dates that he believes he was absent without leave (AWOL) from his military duties, and copies of a Department of Veterans Affairs letter. 

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 is requesting correction of an alleged error, which occurred on 20 March 1972, his date of discharge from the Regular Army.  The application submitted in this case is dated 26 February 2007.

3.  The applicant's records show he enlisted in the Regular Army on 5 June 1967. He completed basic combat, advanced individual training, and was awarded the military occupational specialty 16B (Hercules Missile Crewman).  The highest rank he attained while serving on active duty was specialist five/pay grade E-5.  He was assigned to Battery D, 6th Battalion, 56th Field Artillery and served in the Republic of Vietnam during the period 24 September 1968 to on or about 2 August 1969.  The applicant's expiration of term of service (ETS) was 4 June 1970.
4.  The applicant's records do not show any significant acts of valor during his military service. 

5.  The applicant's service records reveal an extended history of unauthorized absences.  He also has two periods where he was dropped from the rolls (DFR) after his unauthorized absence exceeded thirty consecutive days.  Military personnel service records show the applicant was AWOL from 4 October 1969 to 7 October 1969 (4 days); 13 January 1970 to 7 May 1970 (115 days); 23 June 1970 to 29 June 1970 (7 days); 21 September 1970 to 8 October 1970 (17 days); and then 9 October 1970 to 28 February 1972 (505 days).  Total days AWOL to include DFR status is 648 days.  The number of days the applicant was AWOL prior to his ETS was 143 days.  The applicant was not present for duty and did not process out of the Army on his ETS date due to his status as AWOL.  The number of days the applicant was AWOL after his ETS was 505 days.

6.  On 13 January 1970, the applicant's unit located at Fort Bliss, Texas reported him as AWOL.  On 10 February 1970, the applicant was DFR by his unit and his desertion status was reported to proper military provost marshal and to civilian criminal justice authorities through the National Crime Information Center.  The applicant remained absent until he returned to military control on or about 29 June 1970.  

7.  On 21 September 1970, the applicant went AWOL from his duty station at Fort Hood, Texas.  On 22 September 1970, the applicant was DFR by his unit.  Also on 22 September 1970, the unit commander wrote a letter to the applicant's father informing him of his son's desertion status.  

8.  On 5 October 1971, the Provost Marshall of Fort Hood, Texas declared the applicant an official deserter of the Armed Forces effective 21 September 1970 and reported the applicant's status to civilian criminal justice authorities, specifically entry into the National Crime Information Center.  Records show there was a delay in reporting the applicant as a deserter due to administrative oversight.  The applicant remained absent until he returned to military control at Fort Polk, Louisiana on 28 February 1972.  The applicant was AWOL for a total of 525 days during this period.  

9.  On 8 March 1972, the applicant was charged with AWOL from 3 July 1970 to 27 February 1972 under the provisions of Article 86, Uniform Code of Military Justice.  The applicant requested a discharge from the Army under the provisions of Chapter 10, Army Regulation 635-200 (Enlisted Separations) in lieu of court martial.  

10.  On 20 March 1972, the applicant was discharged from the Regular Army. The reason noted on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) was for the good of the service.  His characterization of service was under other than honorable conditions.  The DD Form 214 issued at that time listed in Block 30 (Remarks) 648 days lost under the provisions of Title 10 U. S. Code 972. 

11.  On 9 May 1977, the applicant's discharge was reviewed under the provisions of the DOD Discharge Review Board Program (Special), Army Military Review Boards Agency.  On 13 June 1977, a determination was made and his characterization of service was upgraded to under honorable conditions.  A new DD Form 214 was issued which shows in Block 21 (Time Lost) 648 days lost under the provisions of Title 10 U. S. Code 972. 

12.  On 8 September 1978, the applicant's record was reviewed by the Army Discharge Review Board as required by Public Law 95-126.  The Board reviewed the applicant's personnel service record and determined that an upgrade to an honorable characterization of service was not warranted under the provision of Public Law 95-126.  

13.  The applicant's Congressman wrote on behalf of the applicant, requesting that the applicant's record be reviewed for time lost while on active duty.  The Congressman states, in effect, that the applicant believes his time lost while on active duty should be 148 days and not 648 days as listed on his DD Form 214.  The Congressman further states that the applicant has been barred from receiving Department of Veterans Affairs benefits because his recorded absences exceed 180 days. 

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 (PCF).  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 Congressman, that his expiration of term of service should be in 1970 and not in 1972 as listed on his DD Form 214.  The applicant further contends that he was AWOL for 148 days and not the 648 days 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 who 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 three 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 1970.  The applicant returned to military control on 28 February 1972.  At that time, the applicant had accrued 648 lost days which equates to 1 year, 9 months and 14 days.  The applicant's new ETS date based on Title 10 U. S. Code Section 972 should have been 12 December 1973.  The applicant voluntarily requested a Chapter 10 discharge in lieu of trial by court martial and was discharged on 20 March 1972 prior to his adjusted ETS date. 

3.  The applicant shows through his own hand written chronological history that he was absent without leave.  The applicant has not demonstrated nor provided neither compelling circumstances nor 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

__LE  ___  ___JM __  ___RD __  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.





______Lester Echols_________
          CHAIRPERSON




INDEX

CASE ID
AR20070004477
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070823
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.