IN THE CASE OF:	  

		BOARD DATE:	  	        14 June 2009

		DOCKET NUMBER:  AR20090004576 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge.

2.  The applicant states that he never intended to desert his duties.  He adds that he was a kid with no real knowledge of travel.  He also missed his flight and was robbed of his money and then spent a week in an unknown town alone.  He also adds that he reported his situation to his commanding officer, but received no assistance regarding securing another flight.  He concludes that during his military service, he was an outstanding Soldier with promotion potential.

 3.  The applicant did not provide any additional documentary evidence in support of his request. 

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 record shows he was born on 29 December 1964 and enlisted in the Regular Army at the age of 18 for a period of 4 years on 14 July 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  He was assigned to A Battery, 2nd Battalion, 17th Field Artillery, Korea. 

3.  On 10 April 1984, the applicant departed Korea on a 21-day ordinary leave.  He was originally due back from leave in Korea on 1 May 1984 but was extended for 7 days through 8 May 1984.  The DA Form 31 (Request and Authority for Leave) contained instructions to contact the Personnel Assistance Point at Oakland International Airport, CA, for extension and/or emergency.  However, he did not do so and failed to return to his unit.

4.  On 9 May 1984, the applicant was reported in an absent without leave (AWOL) status and on 8 June 1984, he was further dropped from the Army rolls. 

5.  On 21 May 1985, by letter addressed to the applicant’s immediate commander, the U.S. Army Deserter Information Point (USADIP) of the U.S. Army Enlisted Records and Evaluation Center (USAEREC), Indianapolis, IN, requested verification of the applicant status, including a charge sheet and a desertion packet.

6.  On 30 August 1985, a routine letter was mailed to the applicant at his last known address regarding his status.  The letter was not returned.

7.  On 20 February 1986, 12 June 1986, and 11 August 1986, by letters, addressed through the Military Personnel Office (MILPO), 2nd Infantry Division, Korea, the USADIP made several subsequent requests for a verification of the applicant's status, including a charge sheet and a desertion packet.

8.  On 5 October 1986, by letter addressed to the MILPO, the applicant’s immediate commander indicated that a thorough search of administrative files revealed no information regarding the applicant.  

9.  On 2 May 1988, a certified 45-day letter of notification of discharge in absentia eligibility was sent to the applicant informing him of the Army’s determination of his desertion status and the intent to discharge him under other than honorable conditions, and providing him with an opportunity to submit a statement on his own behalf.  The notification letter was delivered and the return receipt was received.  

10.  On 3 October 1988, the Commander, USAEREC, Indianapolis, IN, approved the applicant’s discharge in absentia.  He determined that since the applicant had not been under military control since 9 May 1984 his discharge was justified because a person charged with desertion in time of peace or any of the offenses punishable under Articles 119-132 of the Manual of Courts-Martial is not liable to be tried by court-martial if the offense was committed more than 3 years before the receipt of the sworn charges and specifications by an officer exercising summary court-martial authority over the command.

11.  On 29 September 1988, Headquarters, USAEREC, Indianapolis, IN, published Orders 80-1, directing the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued on 29 September 1988 shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct with a character of service of under other than honorable conditions.  This form further confirms he completed 9 months and 25 days of creditable active service and had 1,601 days of lost time. 

12.  There is no indication in the applicant’s records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s     15-year statute of limitations. 

13.  Title 10, U.S. Code, section 843, Article 43, provides for the statute of limitations.  Prior to amendment of the law, except as otherwise provided in this article, a person charged with desertion in time of peace or any of the offenses punishable under sections 919-932 of this title (articles 119-132) is not liable to be tried by court-martial if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.  Furthermore, except as otherwise provided in this article, a person charged with any offense is not liable to be tried by court-martial or punished under section 815 of this title (article 15) if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under section 815 of this title (article 15)." Section 805(c) of Public Law 99-661 provided that: "The amendments made by this section [amending this section] shall apply to an offense committed on or after the date of the enactment of this Act [Nov. 14, 1986]."



14.  Chapter 14 of Army Regulation 635-200, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because he was young at the time and was unable to secure a flight back to Korea was carefully considered; however, it is not sufficiently mitigating in granting him the requested relief.  

2.  With respect to the applicant’s age, the evidence of record shows that the applicant was 18 years of age at the time he enlisted in the Regular Army and was nearly 19 years of age at the time he committed his desertion offense.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. Furthermore, there is no evidence in the applicant's records, and the applicant did not provide substantiating evidence, that shows his misconduct was the result of his age.

3.  With respect to the applicant's inability to secure a flight back to Korea, the evidence of record shows that the applicant was provided with contact information for the Personnel Assistance Point for extension of leave and/or emergency.  There is no evidence that he addressed the issue of not being able to secure a flight back to Korea or that he was not provided with assistance from his chain of command, especially since he had previously requested and was authorized a 7-day extension of his leave.

4.  The applicant’s record shows he deserted his unit on 9 May 1984 and was dropped from the Army rolls on 8 June 1984.  Several attempts were made to determine his whereabouts and/or status with no success.  He was ultimately mailed a letter of notification of discharge eligibility, informing him of the Army’s determination of his desertion status, the intent to discharge him under other than honorable conditions, and providing him with an opportunity to submit a statement on his own behalf.  The notification letter was delivered and the return receipt was received.  There is no evidence that he responded.  

5.  On 3 October 1988, the Commander, USAEREC, Indianapolis, IN, approved the applicant’s discharge in absentia.  He determined that since the applicant had not been under military control since 9 May 1984 his discharge was justified because a person charged with desertion in time of peace or any of the offenses punishable under Articles 119-132 of the Manual of Courts-Martial is not liable to be tried by court-martial if the offense was committed more than 3 years before the receipt of the sworn charges and specifications by an officer exercising summary court-martial authority over the command.

6.  Nevertheless, the evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  The underlying reason for his discharge was his misconduct.

7.  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 did not submit sufficient evidence that would satisfy this requirement.  Based on his desertion, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or a general discharge.  






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X____  ____X___  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.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20090004576





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ABCMR Record of Proceedings (cont)                                         AR20090004576



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