IN THE CASE OF:	  

		BOARD DATE:	    4 October 2011

		DOCKET NUMBER:  AR20110006056 


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, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was at Fort Dix, NJ when he was hurt.  A doctor told him he had a medical discharge and that he should go home, so he did.  He never heard from the military again so he thought he had a medical discharge.

3.  The applicant did not provide any evidence.

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 30 June 1971 for a period of
3 years.  He held military occupational specialty 11D (Armor Reconnaissance Specialist).  The highest rank/grade he attained during his service was private first class (PFC)/E-3.

3.  His record shows he served in Germany from 30 November 1971 to 1 July 1974.  He was awarded the National Defense Service Medal.

4.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code) of his DA Form 20 (Enlisted Qualification Record) shows he was reported in an absent without leave (AWOL) status from 29 June 1972 to 12 July 1972.

5.  On 5 February 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 3 February 1973.

6.  On 2 March 1973, Special Orders Number 61, issued by Headquarters, U.S. Army Europe and Seventh Army, adjusted the applicant's expiration of term of service (ETS) from 29 June 1974 to 11 July 1974 to compensate for his time lost.

7.  On 18 September 1973, the applicant underwent a medical examination at the 731st Health Clinic, Amberg, Germany.  The Standard Form (SF) 88 (Report of Medical Examination) prepared for his examination shows in item 5 (Purpose of Examination) the entry "Separation under AR [Army Regulation] 635-200 [Personnel Separations - Enlisted Personnel], chapter 13 [Separation for Unsuitability]."  The doctor noted the applicant had had a trauma to his left cheek and a fractured nose in May 1972 but he had healed well.  The doctor also noted the applicant had hepatitis in June 1973 that also had been resolved.  He was fully qualified for separation.

8.  On 27 September 1973, he accepted NJP under the provisions of Article 15 of the UCMJ for:

* being disrespectful in language toward a superior noncommissioned officer (NCO) and for disobeying a lawful order from the same NCO on
16 September 1973
* disobeying a lawful command from a superior commissioned officer on
17 September 1973
* disobeying a lawful order from another NCO on 25 September 1973
* disobeying a lawful order from a third NCO on 25 September 1973

9.  On 7 November 1973, having failed to return from emergency leave, his unit reported him in an absent without leave (AWOL) status and on 6 December 1973, he was dropped from the rolls of the Army as a deserter.

10.  The specific facts and circumstances of his return to military control are not available for review with this case; however, it appears at some stage he reported to Fort Dix, NJ.

11.  On 18 April 1974, at Fort Dix, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 4 to 20 February 1974 and 20 March to 16 April 1974.

12.  On 19 June 1974, he departed A Company, Headquarters Command, Fort Dix, in an AWOL status and on the same date he was dropped from the rolls of the Army as a deserter.  There is no evidence he ever returned to military control.

13.  On 24 June 1981, a letter was prepared addressed to the applicant by an Army official.  This letter notified him that based on his lengthy AWOL, he was eligible for a discharge in absentia and that his character of service would be under other than honorable conditions with an Under Other Than Honorable Conditions Discharge Certificate.  He was also informed that:

* The receipt of such discharge might deprive him of many or all of the benefits administered by the Veterans Administration and of his rights and benefits as a veteran under Federal and State law
* He could submit a statement in his own behalf to include any extenuating, mitigating, or aggravating circumstances he felt should have a bearing on the type of discharge to be issued
* He must respond within 45 days from the date of delivery or action would be taken to complete his discharge

14.  A Postal Service (PS) Form 3811 (Receipt, Registered, Insured, Certified Mail) shows the letter was forwarded to the applicant by registered mail.  On
30 June 1981, an individual with the same name as the applicant signed the
PS Form 3811 acknowledging receipt of the mailed item.  However, there is no indication the applicant responded as instructed in the letter.

15.  On 1 September 1981, the separation authority ordered the applicant's discharge in absentia and directed the applicant be issued an under other than honorable conditions discharge.

16.  On 1 September 1981, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at the time shows he was discharged under the provisions of Army Regulation
635-200, chapter 14, by reason of misconduct - desertion.  This form further shows he completed 2 years, 6 months, and 9 days of creditable active service with 183 days of time lost prior to his ETS and 2,605 days of time lost after ETS.  Item 19 (Mailing Address after Separation) shows the same address as shown on the PS Form 2811.

17.  There is no indication he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 14 establishes policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 3-7a states 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 states 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 record reflects a period of service marred with various kinds of misconduct that included multiple instances of NJP and an extensive history of AWOL.  While in Germany, he received NJP and he also was also twice reported AWOL.

2.  The specific facts and circumstances surrounding his desertion from his unit in Germany and subsequent arrival at Fort Dix are not available for review with this case.  However, his record shows that shortly after his arrival at Fort Dix, he again departed AWOL on two occasions before he deserted the Army for good in June 1974.  There is no evidence of record and the applicant did not provide any evidence that shows a doctor told him he had a medical discharge and told him to go home.

3.  His chain of command notified him by registered mail that he could be discharged in absentia due to his extensive desertion and that he would receive an Under Other Than Honorable Conditions Discharge Certificate.  He was also notified of his right to submit a statement in his own behalf to include any extenuating, mitigating, or aggravating circumstances he felt should have a bearing on the type of discharge to be issued.  However, there is no evidence he responded.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or 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)                                         AR20110006056



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006056



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1