IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110016173 


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, revocation and removal of Orders 46-1, issued by the U.S. Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN, dated 9 July 1982, from his records.

2.  The applicant states:

* an expiration of service agreement was signed by him and Sergeant 
(SGT) R--- authorizing his early release for undisclosed reasons related to a vehicle accident in the field involving a tank
* he does not have a copy of the agreement nor was he ever provided a copy of the signed agreement that was witnessed by his section chief
* on 5 October 1980, SGT R--- struck him on the left side of his steel pot helmet with his M-16 rifle
* the strike caused him to blackout and drive an M110 8-inch Howitzer over the side of a bridge and land upside down in a creek filled with water
* several months later and after constant threats by SGT R--- and peer pressure prior to and after the accident, he addressed the problem to his battery commander at the time
* the battery commander referred him back to SGT R--- and suggested they work out their differences
* an agreement was reached for him to receive an honorable discharge with an early release for expiration of service agreement from active duty
* no charges were brought against SGT R---


* he deserves an honorable discharge after his dedication in willfully serving in the Armed Forces
* he is the unfortunate one and has learned that not being able to present an honorable discharge has not allowed him many employment opportunities
* it may be that SGT R--- did not or was not allowed to process the agreement
* he can, upon request, submit documentation on his education within the United States, banking, accounting, and architecture, etc., for the past
29 years

3.  The applicant provides:

* self-authored statements
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* letter from the Department of Veterans Affairs, dated 3 September 2009
* DD Form 214 (Report of Separation from Active Duty) for the period ending 7 April 1979
* DA Form 2 (Personnel Qualification Record – Part I)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* extracts from his medical records
* Orders 46-1, dated 9 July 1982
* earnings printout for the period 1978 through 1985

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 27 December 1978, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 6 years in the rank/grade of private (PV1)/E-1.  He was 


ordered to active duty for training on 11 January 1979.  He completed training and was awarded military occupational specialty 13B (Cannon Crewman).  On
7 April 1979, he was honorably released from active duty for training.

3.  Orders Number 208-2, issued by Headquarters, First U.S. Army, Fort George G. Meade, MD, dated 26 November 1979, ordered the applicant to active duty for a period of 21 months and 3 days.  He was ordered to report to the U.S. Army Reception Station, Fort Dix, NJ with a reporting date of 19 January 1980 with an ultimate assignment to Fort Stewart, GA.

4.  Item 35 (Record of Assignments) of his DA Form 2-1 shows on 24 January 1980, he was assigned to Battery A, 1st Battalion, 13th Field Artillery, Fort Stewart.

5.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the offense(s) indicated:

* on 21 February 1980, for possessing some amount of marijuana on
17 February 1980
* on 8 August 1980, for failing to go at the time prescribed to his appointed place of duty on 4 August 1980
* on 28 October 1980, for failing to go at the time prescribed to his appointed place of duty on 10 October 1980
* on 18 November 1980, for failing to go at the time prescribed to his appointed place of duty on 3 November 1980 and for disobeying an order from a noncommissioned officer (NCO) on 6 November 1980
* on 3 February 1981, for being absent from his unit without authority from 19-20 January 1981, missing a movement on 19 January 1981, and dereliction of duty from 19-20 January 1981

6.  At some point between November 1980 and February 1981, the applicant was reassigned to Battery B of the same battalion as a rehabilitative transfer.

7.  On 1 February 1981, a DA Form 4187 (Personnel Action) indicates the applicant was erroneously advanced to private first class (PFC)/E-3, however, he should be a private (PV2)/E-2 with his previous date of rank due to the fact that he was flagged (suspension of favorable personnel actions) on 20 October 1980.

8.  On 6 February 1981, the applicant's battery commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate).  He cited the applicant's record of 


UCMJ and his rehabilitative transfer from Battery A as the reasons for the proposed action.  On 23 February 1981, the applicant acknowledged receipt of his commander's recommendation to bar him from further reenlistment and of the basis for the action.  The applicant provided written statements that indicated a few misunderstandings had occurred and that he would take corrective actions.  He further indicated he had personal problems that affected him psychologically, such as his mother's heart condition, lack of education, and financial issues.  After reviewing the applicant's comments, the applicant's commanding forwarded his recommendation to the through the chain of command for final disposition.
 
9.  On 2 March 1981, the applicant was reported absent without leave (AWOL).

10.  On 3 March 1981, the appropriate approval authority approved the bar to reenlistment action and directed the remark "Not recommended for further service" be entered on his DA Form 2-1.

11.  On 3 March 1981, the applicant surrendered to his assigned unit.

12.  The applicant's DA Form 4384 (Commander's Report of Inquiry/
Unauthorized Absence) shows the following:

* the applicant wanted a compassionate reassignment to the vicinity of New York to be able to take care of his mother
* the unit was assisting the applicant in obtaining a compassionate reassignment at the time of his AWOL
* the applicant's AWOL precipitated his desire to seek reassignment from his unit; this request was verbally denied by both his battery and battalion commander
* the applicant wanted to see the battalion commander at the time of his AWOL
* on 9 March 1981, the applicant was informed to go the field with his battery
* he missed movement and departed AWOL
* the applicant was presumably in New York City with his mother
* AWOL apprehension at his mother's address was recommended since the applicant had been on ordinary leave at her address in December 1980

13.  A DA Form 4187 shows the applicant was dropped from the rolls (DFR) of his unit on 7 April 1981.


14.  On 8 April 1981, a letter was sent to the applicant's wife informing her that he had been classified as a deserter from the U.S. Army and to return her military identification card.

15.  On 9 April 1981, charges were preferred against the applicant for being AWOL.

16.  Item 18 (Remarks) of the applicant's DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows the stamped remarks " NO LONGER SOUGHT BY ACTIVE ARMY" followed by the handwritten entry "Per Order # 46-1, dated 9 July 1982, Fort Benjamin Harrison."

17.  A review of the applicant's military personnel record fails to show an expiration of service agreement as claimed by the applicant.

18.  The medical documentation provided by the applicant does not show he was hit in the head but rather he "bumped his head."

19.  The applicant provided self-authored statements explaining incidents leading to his discharge and extracts from his military personnel and medical records.

20.  Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program) prescribes policies and procedures for the USAR Reenlistment Program.  Section VII prescribes the procedures for denying reenlistment to persons whose reentry into, or continued service with, the USAR is deemed not in the best interest of the service.  It states that Headquarters, Department of the Army policy extends the privilege of reenlisting only to personnel of high moral character, professional competence, and demonstrated adaptability to the requirements of the professional Soldier’s moral code.  It states that a bar to reenlistment will not be used in lieu of separation action under proper regulations.  When it seems appropriate, a bar to reenlistment should be initiated even if the commander is aware that an honorable or general discharge will be issued for the current period of service or that the Soldier served honorably for a number of years.

21.  Army Regulation 140-111 further states that normally a bar to reenlistment should not be initiated against an individual during the last 90 days before the Soldier is discharged or transferred from the command.  If initiated during this period, the commander must provide a complete explanation why the action was not taken earlier.  This explanation will be entered on the Bar to Reenlistment Certificate.  Bars to reenlistment should be considered for Soldiers who may be 


unsuitable in that they may exhibit their unsuitability through interest or habits detrimental to the maintenance of good order and discipline.  A Soldier who desires to submit an appeal, who is otherwise qualified for reenlistment, will not be involuntarily discharged while an appeal is pending.

22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

23.  According to the Manual of Courts-Martial, Article 85 of the UCMJ applies to any member of the armed forces who without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away there from permanently; quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States.  The maximum punishment when desertion is terminated by apprehension is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.  In all other terminations, a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of Orders 46-1 from his records was carefully considered.

2.  The applicant's personal circumstances at the time, including his mother's health are noted.  However, his military career was marred with misconduct which included multiple instances of NJP, multiple instances of AWOL, a bar to reenlistment, and desertion.

3.  Had the applicant surrendered to military control, charges could have been preferred against him and he could have sought the advice of legal counsel and requested discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service - in lieu of trial by court-martial.  However, since the applicant never returned to military control he was declared a deserter and dropped from the rolls of the Army.

4.  Based on his overall 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.  Further, since the applicant never returned to military control he was never officially discharged.  Therefore, the orders dropping him from the rolls of the Army were and still are valid.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110016173



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ABCMR Record of Proceedings (cont)                                         AR20110016173



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