RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  05 February 2008
	DOCKET NUMBER:  AR20070014449 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

Member

Mr. Ronald D. Gant

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 records be corrected to show he was not a deserter from the Army.

2.  The applicant states, in effect, that he was charged with desertion from the Army but he was never tried and convicted.  At that time he had less than 30 days of excess leave.  He would like for the Army Board for Correction of Military Records (ABCMR) to remove the charge for desertion from his records and follow up with the Federal Bureau of Investigation (FBI) to insure their Criminal Justice Information System (CJIS) has the correct information.

3.  The applicant provides a copy of his DD Forms 214 (Report of Separation from Active Duty) and a partial copy of his discharge packet.

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's military service record shows that he was inducted and entered active duty on 18 September 1969.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 94B (Cook).  He served until he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training), St. Louis, Missouri on  
2 September 1971.  He completed a total of 1 year, 11 months, and 15 days of active service.

3.  The applicant enlisted into the Regular Army on 12 April 1974.

4.  His military service record shows that he was absent without leave (AWOL) during the periods 17 June to 22 July 1974; 29 July to 22 September 1974; and  
15 October 1974 to 13 January 1975.
5.  On 12 March 1980, charges were preferred against the applicant for being AWOL during the period 15 October 1974 to 13 January 1975.

6.  The applicant's military service record does not contain a copy of his discharge packet.  His record does show that the separation approving authority approved a request for discharge for the good of the service under the provision of Army Regulation 635-200 (Personnel Separation) chapter 10, pertaining the applicant, and directed that his discharge be characterized as under honorable conditions.

7.  The DD Form 214 he was issued shows that he received a general discharge on 19 March 1975, with the Separation Program Designator (SPD) code of KFS, which is assigned to Soldiers who are discharged in lieu of trial by court-martial.  He had completed 5 months and 6 days of Net Active Service This Period, accrued 183 days of lost time, and had 34 days of excess leave during the period 14 February 1975 to 19 March 1975.

8.  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.  Although an under other than honorable conditions is considered appropriate, an honorable or general discharge is authorized.

9.  Army Regulation 630-10 (Absence Without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) establishes the policies and procedures for reporting absences, and established procedures for special category absentees, personnel dropped from the rolls, and the surrender of military personnel to civilian law enforcement authorities.  This regulation defines a deserter, in pertinent part, as a Soldier who has been dropped from the rolls of his/her unit when he/she has been absent without leave for 30 consecutive days or when a member of the Armed Forces of the United States goes from or remains absent from his/her unit, organization, or place of duty with intent to remain award therefrom permanently.

10.  The Manual for Courts-Martial 1995 edition provides in Part IV, Article 85 that desertion is any member of the armed forces who without authority goes or remains absent from his unit, organization, or places of duty with the intent to remain away permanently.

11.  Army Regulation 600-8-10 (Leave and Passes) prescribes the policies, operating tasks, and steps governing military personnel absences.  It states, in pertinent part, that involuntary excess leave may be directed if a Soldier is pending approval of a punitive discharge by the General Court-Martial convening authority.  Excess leave is defined as leave in excess of accrued or advanced leave.  The Soldier is not entitled to pay and allowances for a period of such leave.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was not a deserter from the Army.

2.  The evidence shows that the applicant was AWOL from 17 June to 22 July 1974; 29 July to 22 September 1974; and 15 October 1974 to 13 January  
1975, for a total of 183 days of lost time.  By regulatory definition, each period of the applicant’s unauthorized absence would qualify as being in deserter status in that each period of his absences were in excess of 30 consecutive days.  As such, the applicant's status as a deserter on one or more occasions was equitable and proper.

3.  The applicant's voluntary request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  Therefore, for the good of the service in lieu of trial by court-martial the charge was appropriate and remains unchanged.

4.  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 that requirement.  Therefore, he is not entitled to correction of his records to show he was not a deserter.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __AU___  __RDG___  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

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.




____Kenneth L. Wright____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080205
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.