IN THE CASE OF:	  

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120008238 


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 upgrade of his undesirable discharge to a fully honorable discharge.

2.  The applicant states he was told to go on leave pending orders.  He followed orders.  He served honorably but he was reported absent without leave (AWOL) without his knowledge.  He also states:

* He served in Vietnam and returned home pending orders to Germany
* While home, he had knee problems and he went to the Veterans Administration hospital where they operated on him
* He continued to await orders and received his pay from a base in Oakdale, PA; when his pay was stopped, he took a job to support himself
* He ultimately decided he no longer wanted to wait since it took a long time for his orders to come down
* He reported to Fort Meade, MD, to inquire about a discharge but he was detained instead

3.  The applicant provides his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 4 October 1968 and 10 September 1973.

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 28 July 1966 and he held military occupational specialty 13B (Field Artillery Crewmember).  

3.  On 14 November 1966, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 7 to 10 November 1966.

4.  He served in Vietnam from 6 March 1967 to 8 October 1968.   

5.  He was honorably discharged on 4 October 1968 for the purpose of immediate reenlistment in the Regular Army.  His DD Form 214 shows he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, Bronze Star Medal, and Vietnam Campaign Medal.

6.  He reenlisted on 5 October 1968 for 6 years.  He was assigned to the 6th Battalion, 20th Artillery, Fort Carson, CO.

7.  He accepted more NJP under the provisions of Article 15 of the UCMJ on/for:

* 16 December 1968, failing to go at the time prescribed to his appointed place of duty
* 9 January 1969, being AWOL from 31 December 1968 to 8 January 1969
* 2 May 1969, failing to go at the time prescribed to his appointed place of duty

8.  On 22 August 1969, consistent with his pleas, he was convicted by a special court-martial of one specification of being AWOL from 18 May to 1 July 1969.  The Court sentenced him to confinement at hard labor for 6 months, a reduction to the lowest enlisted grade, and a forfeiture of pay.

9.  On 16 September 1969, the convening authority approved a lesser sentence in that he suspended the confinement and any reduction in excess of reduction to E-4, until 22 February 1970.  
10.  On 27 December 1970, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 24 to 25 December 1970.

11.  On 4 May 1971, Special Orders Number 8, issued by Headquarters, 6th Battalion, 32nd Artillery, ordered him reassigned to the U.S. Army Replacement Detachment, Fort Dix, NJ, with a reporting date of 19 June 1971 for further assignment overseas. 

12.  On 19 June 1971, he departed his unit in an AWOL status and on the same date he was dropped from the Army rolls as a deserter.  He returned to military control on 30 July 1973.  

13.  On 8 August 1973, court-martial charges were preferred against him for one specification of AWOL from 19 June 1971 to 30 July 1973.

14.  On 17 August 1973, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation
635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) for prolonged AWOL - unauthorized absence in excess of 1 year.

15.  The applicant subsequently acknowledged receipt of the separation memorandum and consulted with legal counsel.  He was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived appearance before a board of officers, and elected not to submit a statement in his own behalf.  He further acknowledged he understood:

* he could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him
* as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life
* he had up until the date the separation authority ordered, directed, or approved his discharge to withdraw this waiver and request a board of officers

16.  On 27 August 1973, his commander initiated separation action against him by reason of unauthorized absence in excess of 1 year.  His chain of command recommended approval with the issuance of an undesirable discharge.

17.  On 4 September 1973, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for misconduct and directed the issuance of an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 10 September 1973.  The DD Form 214 he was issued for this period of service confirms he completed 2 years, 8 months, and 6 days of active service during the period under review with 820 days of time lost.

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

19.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Section VII, paragraph 
45b, contained the policy and outlined the procedures for separating individuals for desertion or unauthorized absence continued for more than 1 year.  An undesirable discharge was normally considered appropriate.

20.  Army Regulation 635-200 (Personnel Separations) provides the basic policies and procedures for the separation of enlisted personnel. 

	a.  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.

	b.  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 evidence of record shows the applicant departed in an AWOL status on 19 June 1971 and he was dropped from the Army rolls on the same date.  He ultimately returned to military control on 29 July 1973.  He was AWOL for a prolonged period, in excess of 1 year.

2.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and he was notified of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.

3.  His actions at the time brought discredit upon himself and the Army.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders 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)                                         AR20120008238





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ABCMR Record of Proceedings (cont)                                         AR20120008238



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