IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120006511 


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 enlisted in the U.S. Army in 1983.  He completed basic training at Fort Knox, Kentucky and advanced individual training at Fort Lee, Virginia.  He was then assigned to his permanent duty station at Fort Bliss, Texas.

   a.  He was granted a "two-week pass" and returned to his home at
XXXX N. 44th Street, Omaha, Nebraska  68111.  He stayed there for three weeks and then went to Offutt Air Force Base for transportation to Texas.

   b.  He was in uniform and provided a copy of his orders to a commissioned officer; however, he was denied transportation because his personal data was not in the system.  The officer told him to return home and not worry about the military police (MP) looking for him.  He adds that the officer was right about the MPs not looking for him.

   c.  After a few years, he received his discharge documents from the Army.  He has been told that he should be entitled to government benefits because it was the Army's fault that his personal information was not in the database, which led to him being denied transportation back to his duty station in Texas.

3.  The applicant provides a copy of his discharge document.

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.  A DD Form 1966 (Application for Enlistment - Armed Forces of the United States), completed by the applicant on 13 January 1983, shows, in pertinent part, that he listed his home of record and mailing address as XXXX N. 44th Street, Omaha, Nebraska 68111.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 27 January 1983 for a period of 6 years.  He was discharged from the USAR on 31 January 1983 and enlisted in the Regular Army on 1 February 1983 for a period of 3 years.

4.  Two DA Forms 4187 (Personnel Actions), dated 17 June 1983, show the applicant's duty status was changed from in transit to assigned not joined on
13 June 1983 and from assigned not joined to absent without leave (AWOL) on 14 June 1983.  They show the applicant was in transit from Company S (Student Enlisted), 1st Battalion, U.S. Army Quartermaster Brigade, Fort Lee, Virginia, to Company B, William Beaumont Army Medical Center, El Paso, Texas, with a reporting date of 13 June 1983, and that he failed to report on his prescribed reporting date.

5.  In a letter addressed to the applicant at his home of record/mailing address, dated 10 February 1988, the Chief, Records Service Division, U.S. Army Deserter Information Point, Fort Benjamin Harrison, Indiana, informed the applicant that available records indicated he was in a deserter status and eligible for a discharge in absentia.

   a.  He was advised that his discharge would likely be under other than honorable conditions and such discharge may deprive him of many or all veterans' benefits.

   b.  He was afforded the opportunity (within 45 days) to submit a statement in his own behalf prior to issuance of the discharge and/or to return to military control to resolve his military status.

6.  The notification letter was returned undeliverable.  

7.  A review of the applicant's military service records failed to reveal any evidence that he returned to military control.

8.  On 27 April 1988, the separation authority approved the applicant's discharge in absentia.

9.  Headquarters, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana, Orders 34-1, dated 27 April 1988, discharged the applicant effective 27 April 1988.  The orders show the applicant was not entitled to pay and allowances from 14 June 1983 through 27 April 1988.

10.  A DD Form 214 (Certificate of Release or Discharge from Active Duty), as corrected by a DD Form 215 (Correction to DD Form 214), dated 23 April 1992, shows the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), based on misconduct - serious offense - desertion.

   a.  He completed 4 months and 13 days of net active service this period.

   b.  He had 1,774 days of time lost prior to his discharge, from 14 June 1983 through 27 April 1988.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

12.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 185 for desertion.

13.  Army Regulation 635-200, in effect at the time, 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, commission of a serious offense (one for which a punitive discharge is warranted and authorized under the Manual for Courts-Martial), and convictions by civil authorities.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

	b.  Chapter 3, 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.  Chapter 3, 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 contends his discharge should be upgraded because he was denied military transportation to his permanent duty station due to the fault of the U.S. Army because it failed to maintain personnel accountability of him in the military system and he now desires to obtain government benefits.

2.  The applicant's contention was carefully considered.

   a.  In his request, the applicant acknowledges that he went to Offutt Air Force Base one week after his "two-week pass" had expired, which would have been on or about 20 June 1983.  Thus, he acknowledges that he was in an AWOL status at the time.  Therefore, the applicant had a responsibility to report to the MPs to officially return to military control, which he could have done when he entered Offutt Air Force Base for transportation to his unit while he was in an unauthorized duty status.  In fact, there is no evidence of record that shows the applicant made an effort to contact any law enforcement officials.

   b.  On 17 June 1983, the applicant's gaining command placed him in an AWOL status effective 14 June 1983.  Thus, the evidence of record refutes his contention that the Army failed to maintain accountability of him in military systems.

   c.  In addition, the evidence of record shows the U.S. Army Deserter Information Point monitored the applicant's status during the period of his unauthorized absence for nearly 5 years and notified him of the intent to discharge him in absentia.

3.  The applicant's administrative discharge in absentia under the provisions of Army Regulation 635-200 based on misconduct - serious offense – desertion was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reason therefore was appropriate and equitable.

4.  The evidence of record shows the applicant completed less than 5 months of his 3-year enlistment commitment and he was in a deserter status for more than 4 years and 10 months.  Thus, the applicant's record of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care (and other benefits) should be addressed to the Department of the Veterans Affairs.

6.  In view of all of the foregoing, there is no basis for granting 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)                                         AR20120006511



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ABCMR Record of Proceedings (cont)                                         AR20120006511



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