IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20110015607 


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.

2.  The applicant states at the time of his discharge in 1973, no mental evaluation was considered.  His discharge was based on one incident.  Prior to that incident his service was excellent.  He was a career-minded Soldier and he conducted himself as such.  He had mental problems upon his return from Vietnam and that is why he was assigned to recruiting duty.  His service as a recruiter was excellent and he received several awards for his performance.  However, he started drinking and over the years, his drinking got worse.  He was tried for hijacking and because the Army relied on testimony of men who served in Vietnam with him, he was sentenced to only 5 years in prison (this offense carries a sentence of life in prison).  Additionally, the appropriate discharge for what he did was normally a dishonorable discharge.  He is older now and he has recently applied for U.S. citizenship but he was denied because of his discharge. He feels he paid for his mistake many times over.  He was proud of serving this country and he would like to become a citizen and die with an American flag over his box.

3.  The applicant provides:

* DA Form 20 (Enlisted Qualification Record)
* National Archives and Records Administration (NA) Form 13038 (Certification of Military Service)
* 
DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 13 February 1963 and 12 October 1973
* Multiple DD Forms 4 (Enlistment Record – Armed Forces of the United States)
* Multiple Standard Forms (SF) 89 (Report of Medical History)
* Multiple SFs 88 (Report of Medical Examination)
* February 2009 patient evaluation
* Five letters of support/character reference letters

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, a non-US citizen who was born in Cuba, enlisted in the Regular Army (RA) on 1 February 1961 for a period of 3 years.  He held military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was honorably discharged on 13 February 1963 for the purpose of immediate reenlistment.

3.  On 14 February 1963 he reenlisted for a period of 6 years.  He served in Alaska from 25 June 1964 to 2 July 1966.  He also served in Vietnam with Headquarters and Headquarters Company, 1st Brigade, 101st Airborne Division from 31 August 1966 to 25 August 1967.

4.  Upon completion of his Vietnam tour and training as a recruiter, on or about 19 September 1968, he was assigned to the Armed Forces Examining and Entrance Station (AFEES), Puerto Rico, as a recruiter.  However, he was relieved from recruiting duty due to unsatisfactory performance, poor production, letters of indebtedness, and mismanagement of personal funds.

5.  On 14 February 1969, he reenlisted for a period of 6 years.  He was issued reassignment instructions to Alaska.

6.  He departed his losing station on 3 September 1969 and while en route, he illegally departed the continental United States (CONUS) to Cuba.  His reassignment orders were subsequently revoked on 24 September 1969 and on 26 September 1969, his losing unit in Puerto Rico reported him in an absent without leave status.  He was subsequently dropped from the rolls (DFR) of the Army as a deserter. 

7.  On 26 September 1969, by letter, the Commander, U.S. Army Enlisted Records, Fort Benjamin Harrison, IN, notified the applicant he was:

* Being discharged from the Army by reason of desertion
* His character of service would be under other than honorable conditions and he would be issued an Undesirable Discharge Certificate
* He would be deprived of many or all benefits administered by the Veterans Administration and of his rights and benefits as a veteran under Federal and State laws
* Given an opportunity to submit a statement on his own behalf, to include any extenuating, mitigating, or aggravating circumstances and that if no reply was received within 30 days, action would be taken to discharge him

8.  He was ultimately discharged on 12 October 1973.  The DD Form 214 he was issued at the time shows he was discharged as an "Alien DFR for More Than One Year in accordance with Department of the Army Message 161800Z July 1973" with an under other than honorable conditions character of service and issuance of an Undesirable Discharge Certificate.  He completed 7 months and 10 days of net service this period for 8 years, 7 months, and 23 days of total active service, including 1,479 days of time lost due to being AWOL/DFR.

9.  On 7 September 1987, the Army Discharge Review Board (ADRB) denied his petition for an upgrade of his discharge.

10.  He submitted:

	a.  SFs 88 and 89, dated 24 January 1961 and 11 February 1963 that show he was qualified for enlistment/reenlistment.

	b.  A civilian psychiatric and neurological evaluation, dated 25 February 2009, that shows he was diagnosed with dissociative fugue and post-traumatic stress disorder.

	c.  Five letters of support and/or character reference letters from various former service members who claim they served with the applicant in Vietnam 

with the Long Range Reconnaissance Patrol (LRRP) of the 1st Brigade,
101st Airborne Division.  The authors describe the stress, difficulties, and challenges they encountered in Vietnam.  They opined that the applicant was an exemplary Soldier and that they are proud to have served with him.

11.  Department of the Army Message 161800Z, dated July 1973, provided guidance regarding discharge of aliens who were DFR for more than 1 year.  This message was implemented in Change 42 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 15-16.  It states that alien members of the Army will be discharged for prolonged unauthorized absence in absentia when all the following circumstances exist:

* The unauthorized absence has continued for 1 year or longer
* The alien is known to be residing in a foreign country
* The notification requirements in paragraph 15-17 have been completed

12.  Army Regulation 635-200, paragraph 15-17, states that when an absentee is residing at a known address in a foreign country which has registered mail service, a letter stating the basis for pending discharge action will be sent to the individual by registered mail, return receipt requested.

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 (emphasis added), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a non-U.S. citizen, enlisted in the Regular Army on 1 February 1961.  He served honorably through multiple reenlistments and he was issued an appropriate separation document for each period of service.

2.  During his last assignment in Puerto Rico, he departed his losing station on 3 September 1969 and while en route, he illegally departed CONUS to Cuba.  

His orders were subsequently revoked and he was reported in an AWOL status and then in a DFR status.  Regulatory guidance, in effect at the time, stated alien members of the Army would be discharged for prolonged unauthorized absence in absentia when all the following circumstances exist:

* The unauthorized absence has continued for 1 year or longer
* The alien is known to be residing in a foreign country
* The notification requirements have been completed

3.  The applicant was notified that the Army had initiated discharge action against him.  He was notified he would be discharged by reason of desertion, his character of service would be under other than honorable conditions, and he would be deprived of many or all benefits.  Additionally, he was also given an opportunity to submit a statement in his own behalf, to include any extenuating, mitigating, or aggravating circumstances and that if no reply was received within 30 days, action would be taken to discharge him.  He failed to respond.  Accordingly, he was ultimately discharged after accruing 1,479 days of time lost.

4.  With respect to his contention:

	a.  His service in Vietnam as well as the challenges he encountered there are noted.  However, there is no evidence this service caused him to go AWOL or that he was exposed to any more danger in Vietnam than the thousands of service members who successfully completed their service.

	b.  There is no evidence he was diagnosed with a medical condition related to his service in Vietnam.  His reenlistment physicals clearly show he was fully qualified for reenlistment and/or continued service.  If he had encountered a medical condition at the time, his condition would have been diagnosed and he would have been provided necessary treatment if he had not deserted the Army.

	c.  Contrary to his contention that he was successful in recruiting duty, the evidence of record shows he was relieved from recruiting duty due to unsatisfactory performance, poor production, letters of indebtedness, and mismanagement of personal funds.

	d.  The character reference letters he provides are noted.  However, they are not sufficiently mitigating to grant him the requested relief.  Additionally, the Army does not correct record solely for the purpose of entitlement to other benefits or programs.

5.  His separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  Therefore, the reason for his discharge and the characterization of service were both proper and equitable.  

6.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is no basis for granting the applicant's 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)                                         AR20110015607



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ABCMR Record of Proceedings (cont)                                         AR20110015607



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