IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110002117 


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 under other than honorable conditions discharge.

2.  The applicant states after he enlisted in the Regular Army (RA) and while deployed, his spouse returned to her home in Mexico.  After his return, he arranged family housing and went to Mexico to bring his wife back.  However, she was not allowed entry into the United States.  Since he could not bring his family to the United States, he returned to Mexico and stayed with his wife.  He ultimately received an undesirable discharge.  However, he sorted out the issue with his wife's entry into the United States and they have been married for over 32 years.  Since his discharge, he has been a law-abiding and productive member of the community.  He admits that his actions at the time were unwise, but he chose not to abandon his wife.  

3.  The applicant provides:

* DD Forms 214 (Report of Separation from Active Duty) for the periods ending on 14 February 1974 and 23 November 1976
* Police Record Clearance form

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 records show he was inducted into the Army of the United States on 7 February 1972 and he held military occupational specialty 62M (Rough Terrain Forklift and Loader Operator).  

3.  On 2 August 1972, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) from 18 June to 31 July 1972. 

4.  He served in Germany from 28 February 1973 to 18 February 1975 and attained the rank/grade of specialist five (SP5)/E-5.  While in Germany, he was honorably discharged on 14 February 1974 for the purpose of immediate enlistment in the Regular Army.  

5.  His DD Form 214 for this period of service shows he completed 1 year, 10 months, and 24 days of creditable active service and he had 43 days of lost time.

6.  On 14 July 1975, after having failed to return from ordinary leave, he was reported in an AWOL status and on 13 August 1975, he was dropped from the Army rolls as a deserter.  

7.  On 13 August 1975, by letter addressed to the applicant in Mexico, a separation authority, on behalf of the Secretary of the Army, informed the applicant he would be discharged from the Army for misconduct and that he would be issued an Undesirable Discharge Certificate.  He was further informed/advised of the basis for the contemplated action to separate him for misconduct, the opportunity to submit a statement in his own behalf, and that he in the event of the issuance of an undesirable discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and he might encounter substantial prejudice in civilian life.  He was given 30 days to respond but he did not do so. 

8.  On 21 May 1976, the Federal Bureau of Investigation issued a statement in which an official stated the records of the U.S. Consulate in Mexico indicated on 27 February 1976, the applicant signed an Oath of Renunciation of Nationality of the United States on 20 February 1968.  On the same date, a statement of loss of nationality was forwarded to the State Department in Washington, DC.  State Department records indicated the Certificate of Loss of Nationality had been approved on 27 March 1968 and forwarded to the applicant on the same date.

9.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 23 November 1976 under the provisions of section III, chapter 15, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct (desertion) in pay grade E-1 with an under other than honorable conditions characterization of service.  This form also shows he completed a total of 3 years, 3 months, and 24 days of creditable active service and he had 495 days of lost time.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  He submitted a Police Record Clearance, dated 5 January 2011, that shows he had no criminal records in the city of Sacramento, CA. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of the regulation in effect at the time provided, in pertinent part, for the elimination of enlisted personnel for misconduct by reason of absence without leave or desertion.  Elimination action under the provisions of this chapter would not be taken in lieu of disciplinary action solely to spare an individual the penalties which could be imposed under the Uniform Code of Military Justice.  When absentees were returned to military control from a status of AWOL or desertion, the commander exercising general courts-martial jurisdiction could direct discharge, direct retention, or convene an administrative discharge board or approve discharge but suspend its execution.

13.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a record of his AWOL, desertion, notification memorandum, and a duly-constituted DD Form 214 that shows he was discharged on 23 November 1976 under the provisions of chapter 15 of Army Regulation 635-200 for misconduct with an under other than honorable conditions discharge.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his 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.  

3.  The evidence shows the applicant's statement was not completely factual.  He did not indicate that he had renounced his U.S. citizenship or that he had been previously reported in an AWOL status from 18 June to 31 July 1972.  He also failed to indicate that he was notified of his discharge proceedings and he was afforded an opportunity to submit a statement on his own behalf.  

4.  The circumstances with respect to his wife's entry into the U.S. at the time are noted; however, there were many other legitimate ways he could have chosen to resolve the issue.  Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to the requested relief.

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)                                         AR20110002117



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ABCMR Record of Proceedings (cont)                                         AR20110002117



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