BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110005731


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 correction of his records to show he was honorably discharged on 31 March 1981 in two separate applications.

2.  The applicant states:

* 25 June 1984 is not the date of his expiration term of service (ETS)
* 31 March 1981 is the date of his ETS
* he was on leave from 8 December 1979 to 8 January 1980
* he was waiting for his port call and instructions to be mailed to him at his leave address and he never received them

3.  The applicant provides:

* Department of Veterans Affairs (VA) letter, dated 6 January 2011
* DA Form 2496 (Disposition Form)
* DA Form 31 (Request and Authority for Leave)
* VA Form 21-4138 (Statement in Support of Claim)
* DA Form 613 (Checklist for Preparation of Placements for Oversea Movement)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)


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 enlisted in the Regular Army on 4 April 1975.  He completed training as an automotive repairman.  He was honorably discharged on 30 March 1978.  He completed 2 years, 11 months, and 27 days of net active service this period.

3.  The applicant reenlisted in the Army for 3 years on 31 March 1978.

4.  On 7 December 1979, the applicant submitted a request for permanent change of station leave for 30 days from 8 December 1979 to 8 January 1980.  His leave address is shown as Broadview Heights, Ohio.

5.  A DA Form 2496 was prepared on 7 December 1979 showing he was not in receipt of port call instructions and that a port call had been requested for on or about 8 January 1980.  The DA Form 2496 states that upon receipt of port call instructions they would be mailed to the applicant at his address.

6.  On 10 December 1979, a DA Form 613 was prepared showing he was placed on leave for 30 days beginning 9 December 1979.  The leave address is shown as Broadview Heights, Ohio.

7.  On 29 May 1984, the applicant was notified by the Chief, Records Services Division, that a review of his records failed to produce a record of his discharge from the service.  He was told that available documentation indicated he was in a desertion status eligible for a discharge in absentia.  It was anticipated that his discharge would be under other than honorable conditions and that he may be deprived of any or all veterans' benefits administered under Federal and State laws.  The applicant was offered the opportunity to submit a statement in his own behalf and was advised that he should report to the nearest military installation within his area of residence and have in his possession the notification and any documentation pertaining to his military service should he desire to return to military control to resolve his military status.  He was told that action would be taken to affect his discharge if he did not return to military control or respond to the notification within 45 days.

8.  On 25 June 1984, the applicant was discharged in absentia under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct – commission of a serious offense.  He completed 1 year, 9 months, and 6 days of net active service this period.

9.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

10.  The applicant submits a VA Form 21-4138 stating:

* he never received port call instructions
* he went to the recruiting station three times and the recruiter called Fort Riley 
* he was told not to worry about it and the port call instruction would be mailed
* the recruiter told him to check the mail every day and he never heard anything or received a telephone call
* the witness that was with him is dead

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting documents have been considered.

2.  He has not submitted any evidence to support his contention that he never received port call instructions and continued to be told by recruiters not to worry about not receiving port call instructions.

3.  He reenlisted in the Army on 31 March 1978 and he knew he had at least a  3-year service obligation.  He also knew that his leave ended on 8 January 1980. 
If he did not receive his port call instructions, it was his responsibility to report to the nearest recruiting office or Army installation and notify officials of his situation.

4.  The applicant's records show he went on leave and failed to return.  He remained absent in desertion until he was discharged in absentia on 26 June 1984.  He would have been released from active duty at his ETS on 30 March 1981 had he not been absent in desertion.

5.  He was discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense.  In the absence of the evidence to the contrary, it must be presumed that what the Army did in his case was correct.

6.  In view of the foregoing, the applicant's request should be denied.


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 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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20110005731



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