IN THE CASE OF:	

		BOARD DATE:	20 August 2009   

		DOCKET NUMBER:  AR20090008021 


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, in effect, that his record be corrected to show that he was absent without leave (AWOL) and not a deserter.

2.  The applicant states, in effect, that while applying for a pistol permit he was informed that his military records show that he was a deserter.  He indicates he would get drunk, go AWOL, and be afraid to go back and face his punishment.  He also states that he thinks a clerk put him down as a deserter for spite because back in those days if you messed up some gun-ho guy would mess with your record so you would have a hard time.

3.  The applicant provides no documentary evidence in support of his application.

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 inducted into the Army of the United States and entered active duty on 11 August 1968.  He completed basic combat training at Fort Bliss, Texas, and on 13 October 1968, prior to reporting to his advanced individual training (AIT) unit at Fort Benning, Georgia, he was reported AWOL.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows, in Item 21 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) that he accrued time lost for during the following four periods for the reasons indicated:  13 October 1968 to 9 November 1969, AWOL (392 days); 12 November to 21 December 1969, Confinement
(39 days); 6 January 1970 to 22 February 1971, AWOL (413 days); and 19 June to 27 August 1971, AWOL (69 days). 

4.  On 23 September 1971, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for three specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL during the following periods:  13 October 1968 to 10 November 1969, 
6 January 1970 to 23 February 1971, and 19 June to 27 August 1971.

5.  On 27 September 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  In his request for discharge, the applicant acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an undesirable discharge.

7.  On 24 May 1971, the separation authority denied the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 635-200. 

8.  On 8 January 1973, a DD Form 458 was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL from on or about 25 October 1971 to on or about 28 December 1972.

9.  On 15 January 1973, the applicant again voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.   Prior to making this request, he consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  In his request for discharge, he acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He further also indicated that he understood he could face substantial prejudice in civilian life because of an undesirable discharge.

10.  On 24 January 1973, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 
635-200.  On 2 February 1973, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he completed 11 months and 18 days of creditable active military service and that he accrued 1,285 days of time lost due to AWOL and confinement.

9.  Army Regulation 630-10 (Absence Without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) provides policies and procedures for reporting unauthorized absentees and deserters, administering of AWOL personnel and deserters, returning absentees and deserters to military control, and surrendering of military personnel to civilian law enforcement authorities.  Paragraph 2-1h states to report all absentees as deserters after 30 consecutive days of AWOL.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his record should be corrected to show that he was AWOL and not a deserter has been carefully considered.  However, there is insufficient evidence to support this claim.  By regulation, all absentees are reported as deserters after 30 days of AWOL.  

2.  The evidence of record confirms that the applicant was reported AWOL for 392 days AWOL from 13 October 1968 to 9 November 1969, for 413 days from
6 January 1970 to 22 February 1971, and for 69 days from 19 June  to 27 August 1971, as evidenced by his DA Form 20 and by the 23 September 1971 DD Form 458 on file.  The record also shows that he was additionally AWOL for more than a year from 25 October 1971 to 28 December 1972.  Therefore the applicant accrued more than 30 days AWOL during each of his unauthorized periods of absence and as a result he was appropriately classified as a deserter as required by regulation.  Accordingly, there is basis upon which to grant the applicant's requested relief in this case.

3.  Based on the applicant's excessive periods of AWOL, which total 1,258 days, he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and after consulting with legal counsel being advised of his rights and the effects of an undesirable discharge, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process, and he appropriately received an undesirable discharge.  

4.  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 request.

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)                                         AR20090008021



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ABCMR Record of Proceedings (cont)                                         AR20090008021



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