IN THE CASE OF:	   

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120023050 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he really believed when he first joined the Army that he would retire from the service.  He finished basic training at the top of his unit and received an award and trophy.  When he arrived at Fort Eustis, VA, he really liked working on a small tug boat.  He was placed in charge of that boat.  Then in 1976, he was asked if he wanted to go to Japan and help bring back a large tug boat from Okinawa.  He agreed with the understanding that he would be able to return to his small tug.  When he returned he was told that because he did such a good job on the large tug, he was being kept on it.  He felt lied too and did not want to go out on the large tug and be gone every 6 months.  He knows that leaving was not the answer.  The last time he returned he was given orders not to leave the boat.  However, he was in real bad pain.  His parents came and picked him up and took him to the doctor.  His appendix was removed.  When he returned to his unit, the commander just wanted him gone.  He was reduced to private (PV1)/E-1 and asked to sign his discharge.  He knows he was wrong, but now asks for help.  He wants his discharge to be honorable.

3.  The applicant provides:

* a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 11 December 2012
* a VA Form 26-8320 (Certificate of Eligibility for Loan Guaranty Benefits), dated 9 March 1994
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 21 January 1975, the applicant enlisted in the Regular Army for a period of 3 years.

3.  On 3 September 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to stand watch aboard his tug boat.

4.  Records show the applicant was absent without leave (AWOL) during the period:

* 15 - 21 March 1976 (no record of punishment in the available record)
* 1 - 20 June 1976 (received NJP)
* 26 June -9 August 1976 (no record of punishment in the available record)
* 18 -20 October 1976 (received NJP)

5.  On 6 August 1977, the applicant was AWOL.  On 3 September 1977, he was listed as a deserter.

6.  On 21 October 1980, the Chief, Records Services Division, Fort Benjamin Harrison, IN, sent a letter to the applicant's last known address wherein he informed the applicant that effective 3 September 1977, he was charged with desertion from the 558th Transportation Company, Fort Eustis.  A review of his record shows he was eligible for a discharge in absentia.  His discharge would be under other than honorable conditions and he may be deprived of many or all of the benefits administered by the VA and of his rights and benefits as a veteran under Federal and State laws.  The applicant was offered the opportunity to submit a statement in his own behalf wherein he could include any extenuating, 


mitigating, or aggravating circumstances he felt should have a bearing on the type of discharge to be issued.  If a reply was not received in 45 days from the date of delivery, action would be taken to complete the discharge.  The letter was signed by order of the Secretary of the Army.

7.  The unclaimed registered letter discussed in the preceding paragraph is filed in the applicant's personnel records.  It shows the postal service made two attempts to deliver this letter, on 31 October and 5 November 1980.

8.  A Memorandum for Record, dated 10 December 1980, states the following facts:

	a.  the applicant had enlisted in the Regular Army on 21 January 1975 for 
3 years;

	b.  he had 33 days time lost prior to being reported AWOL on 6 August 1977;

	c.  he was dropped from the rolls of the Army on 3 September 1977;

	d.  there was no report of his return to military control;

	e.  there were no charge sheets in his personnel records;

	f.  the letter of notification was forwarded to him on 21 October 1980 and it was returned as undeliverable; and

	g.  the recommendation was to sign the discharge documents.

9.  Accordingly, on 10 December 1980, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for misconduct – desertion, with an under other than honorable conditions discharge.  He completed 2 years, 5 months, and 12 days of creditable active duty service with approximately 198 days of time lost prior to his normal expiration of term of service (ETS) on 20 January 1978 and 1,050 days of time lost after his ETS.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.


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

	a.  Chapter 2 provides for separating Soldiers beyond military control by reason of AWOL.  Before separation is executed the Soldier will be notified of the imminent action by registered mail, with return receipt requested, sent to the Soldier’s last known address or to the next of kin.  If the general court-martial convening authority or higher authority determines that separation is otherwise appropriate under this regulation, a Soldier may be separated without return to military control after receiving notice of initiation of separation processing.  The notice will state that the action has been suspended until a specific date, but not less than 30 days from the date of mailing, to give the Soldier the opportunity to return to military control.  If the Soldier does not return to military control by such date, the separation authority will take appropriate action.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include desertion.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	c.  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.

	d.  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 under other than honorable conditions discharge should be upgraded to honorable because he knows he was wrong and he is sorry.

2.  The record shows the applicant received three NJPs and he was subsequently dropped from the rolls of the Army as a deserter.


3.  The Army sent the applicant notification of his pending discharge and afforded him the opportunity to submit a statement in his own behalf explaining any extenuating, mitigating, or aggravating circumstances that may have had a bearing on the type of discharge to be issued.  That notification was returned without delivery.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations permitting his discharge in absentia.  There is no indication of any procedural errors that would have jeopardized his rights.

5.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

6.  The applicant has not provided any relevant documentation or convincing argument showing that the characterization of his discharge should be upgraded.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120023050



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ABCMR Record of Proceedings (cont)                                         AR20120023050



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