IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090010246 


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 that his under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states that he is not a deserter and not a dishonorable Soldier.  He also states that he would like to appear before the Board so it can hear his side of the story, too.  He continues stating that he lost nearly all his family back home in a tribal conflict in his village in Nigeria.  He states that he left his base with permission but failed to return on time due to circumstances out of his control.  He states that by the time he returned he had been declared a deserter.  He states that that was unjust, unfair, and mean.  He asks that the Board please review and reverse his discharge.  He states that he did not know what was in his file until recently.  He states that he was a model citizen-Soldier with no discipline problems whatsoever.

3.  The applicant provides Headquarters, U.S. Army Training Center and Fort Jackson, Order 177-241, dated 25 August 1978, in support of this 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 military records show he enlisted in the Regular Army on 18 April 1978 in pay grade E-3.  He completed basic training only and was not awarded a military occupational specialty.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  Records show that on 17 August 1978 the applicant was academically dropped from clerk specialist training at Fort Jackson and reassigned to Fort Sill effective 29 August 1978 for the purpose of retraining in field artillery.

4.  On 8 November 1978, the applicant was charged with one specification of being absent without leave (AWOL) beginning on 7 October 1978.

5.  Records show a letter of notification of discharge eligibility was forwarded to the applicant on 28 September 1982.  The notification letter was returned as undeliverable because the addressee [applicant] moved and left no forwarding address.

6.  Records indicate the applicant was eligible for a discharge in absentia since he had not been under military control since 7 October 1978 and could not be contacted.  Records show discharge action was initiated prior to 1 October 1982.

7.  On 19 August 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct - desertion.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant shows he completed a total of 5 months and 19 days of active military service.  His DD Form 214 shows he had 921 days of lost time before his normal expiration of term of service and 852 days of lost time after his normal expiration of term of service.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities.  A discharge under other than honorable conditions is normally considered appropriate.

9.  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.  While it is understandable that the applicant would like to tell the Board his side of the story, there is sufficient information available for the Board to make a just decision in this case.  Therefore, it is not necessary for him to appear before the Board for these proceedings.
 
2.  The applicant's record shows he was AWOL on 7 October 1978 and there is no evidence he was ever returned to military control.  Such conduct would certainly warrant an administrative separation from the Army.  He was discharged in absentia nearly 5 years later.  Therefore, he is not entitled to a general discharge.

3.  While the Board certainly takes post-service accomplishments and behavior into consideration when an applicant requests an upgrade of a discharge, the accomplishments and behavior have to be exemplary to warrant upgrading a properly issued discharge.  While the applicant indicates he has been a good citizen and supported "a lot of military causes" in his community, these are qualities that citizens of this country are expected to exhibit.  The applicant has not shown that he has any post-service accomplishments or behavior which would warrant upgrading a discharge based on AWOL/desertion.  However, the applicant's character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the actions that he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090010246



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ABCMR Record of Proceedings (cont)                                         AR20090010246



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