IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20090020740 


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 undesirable discharge to a general discharge.

2.  The applicant states: 

   a.  He was he was dropped from the rolls of the Army as a deserter and issued an undesirable discharge due to desertion.  A Soldier must be absent without leave (AWOL) at least 180 days to be classified as a deserter, he was AWOL
153 days.  He does not believe this rises to the level of desertion.

   b.  According to his DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 14 December 1967, and DA Form 20 (Enlisted Qualification Record) he enlisted in the U.S. Army Reserves (USAR) on the day he took his Armed Services Vocational Aptitude (ASVAB) test in Amarillo, TX; therefore, he should have at least one DD Form 256A (Honorable Discharge Certificate).  Although it was a short period of time it clearly shows his intent to remain in the military during a time of war and it is a period of honorable service to his country.

   c.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) clearly supports he had an extended period of honorable service from 27 December 1967 to 3 March 1970.  The period of time that he was stationed in Korea was primarily the time he had marital problems.  His reaction to those problems led to treatment for chest pains, hyperventilation, and panic attacks.  He also experienced serious depression and anxiety as well as one suicide attempt.

   d.  He did have periods of poor service; however, characterizing his entire period of service as undesirable ignores over 2 years of service that he could be proud of.

3.  The applicant provides a DD Form 4, DA Form 20, DD Form 214, DA Form 20B (Record of Court-Martial Conviction), medical reports, Special Order #60, and a Veterans Administration (VA) Form 21-4138 (Statement in Support of Claim).

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.  On 14 December 1967, the applicant enlisted in the USAR for 6 years and the delayed entry program for 120 days.  His Regular Army (RA) enlistment date was
12 April 1968.  On 27 December 1967, the applicant voluntarily enlisted in the RA for a period of 3 years. He served only 14 days in a USAR status, and would not have been awarded a discharged certificate at this time. 

3.  Records show the applicant was 19 years of age at the time of his enlistment. Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 76Y (Supply Specialist).  The highest grade the applicant attained was specialist/pay grade E-4.

4.  On 28 March 1968, the applicant received nonjudical punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from          25 March to 27 March 1968.  



5.  On 10 June 1970, the applicant was convicted by a special court martial of one specification of being AWOL from 3 March through 13 May 1970.  

6. On 16 July 1970, the applicant departed in an AWOL status.  On 14 August 1970, he was dropped from the rolls and carried in a desertion status.  On 
15 December 1970, he returned to military control.

7.  On 21 January 1971, the applicant was convicted by a special court martial of being AWOL from 16 July through 15 December 1970.  

8.  The applicant’s separation packet is not available.  The applicant’s
DD Form 214 shows he was discharged on 2 March 1971 with an undesirable discharge under the provisions of Army Regulation 635-212, based on unfitness. At the time he had completed 2 years, 5 months, and 3 days of net active service.  The DD Form 214 also shows he had 189 days of lost time from 
3 March through 12 May 1970, 21 May through 14 June 1970, 16 July through
16 December 1970 and 22 January through 17 February 1971.  

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 

10.  Army Regulation 635-212 in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:   (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established patter of shirking; (d) an established pattern of dishonorable failure to pay just debts, and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees, or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.  

11.  Army Regulation 625-200 (Personnel Separations), 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.
12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  Paragraph 1-4a(1)(a) through (1-4 a(1)(d) states a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from the Active Army. Personnel included are (a) members of the Army National Guard of the United States (ARNGUS) and USAR separated for physical disability, regardless of the period of time served on active duty; (b) after completing 90 days or more of continuous active duty training, full time training duty, or active duty support (c) after completing initial active duty for training which resulted in the award of an MOS, even though the active duty was less than 90 days.  This includes completion of AIT under the ARNGUS Alternate Training Program or USAR Split Training Program; (d) from a special active duty training program tour, (i.e. tours for projects relating to Reserve Component programs that require Reserve Component expertise, such as unit conversions to new weapons systems).

13.  Army Regulation 630-10 (Absence without Leave, and Administration of Personnel Involved in Civilian Court Proceeding), in effect at the time, set forth the basic authority for desertion.  A Soldier is dropped from the rolls of his or her unit when (1) absent without authority for 30 consecutive days; (2) the unit commander believes the Soldier voluntarily sought political asylum or is living in a foreign country apart from official duties or authorized leave; (3) the Soldier has joined the armed forces of a foreign country; (4) there is reasonable belief that the Soldier has left his or her duty station with the intent to avoid hazardous duty or important service, or intends to remain permanently absent.  An expressed intention not to return to a particular unit is not enough evidence to drop the Soldier from the rolls of the Army; (5) the Soldier fails to return to a unit from which he or she is AWOL after returned to military control at another location or departs prior to the completion of administrative, judicial, or nonjudical action for a previous absence; (6) he or she escapes from confinement (7) identified as a special category absentee; (8) a commissioned officer tenders his or her resignation and before notice of its acceptance, departs their post or proper duties without leave and with the intent to remain away therefore permanently; and (9) a member of the Armed Forces of the United States goes from or remain absent from his or her unit, organization, or place of duty with intent to remain away therefore permanently.  







DISCUSSION AND CONCLUSIONS:

1.  The specific facts and circumstances surrounding the applicant's discharge processing are not available.  However, his record does include a properly-constituted DD Form 214 which identifies that the applicant was discharged in accordance with Army Regulation 635-212, due to unfitness with an undesirable discharge.  

2.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative discharge was accomplished in accordance with applicable regulations, that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  The applicant enlisted in the USAR and entered into the delayed entry program on 14 December 1967 with a 12 April 1968 enlistment date in the RA.  However, the applicant enlisted in the RA 4 months earlier than requested.  He served only 14 days in the delayed entry program.  Even if he had served a longer period of time, he would not have received a discharge certificate prior to serving in an active duty status.   

4.  The applicant’s contention his discharge was inequitable because a Soldier must be AWOL for at least 180 continuous days before being classified as a deserter.  He states he was AWOL for 153 continuous days; therefore his DA Form 20 is incorrect.  The applicant was discharged under the provisions of Army Regulation 635-212, for unfitness and not desertion.  Although his record shows he was dropped from the rolls and carried in a desertion status, he was correctly discharged under Army Regulation 635-212 for unfitness.  In any case, a Soldier may be classified as a deserter after 30 (not 180) days of AWOL.

5.  The applicant’s contends he served honorably from 27 December 1967 through 3 March 1970, a period of 2 years, 2 months, and 19 days.  However, during this period the applicant received an Article 15 on 28 March 1968 for being AWOL from 25 March through 27 March 1968.  Therefore, the applicant did not serve honorably within the time period stated.  

6.  The applicant also had two court-martial convictions for being AWOL and he had 189 days of lost time at the time of his discharge.

7.  There is no evidence to support the applicant’s contention that he was having marital problems while stationed in Korea.  There is also no evidence that the applicant notified anyone in his chain of command that he was experiencing marital problems before or after being AWOL. 

8.  The applicant's record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  It was not sufficiently meritorious to warrant a general discharge.  Therefore, the applicant is not entitled to 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)                                         AR20090020740



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ABCMR Record of Proceedings (cont)                                         AR20090020740



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