BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130000416 


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 his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states his wife abandoned him and took his newborn son from Fort Riley, KS, to Dallas, TX.  He was mentally shocked and could not function properly.  He received news that Child Protective Services had taken his son away from his wife because his leg was broken somehow.  He asked for permission from his unit to go get his son but was denied.  He could not think straight because of these incidents and he still has trouble comprehending where it all went wrong.  He is deeply sorry for this incident.

3.  The applicant provides no additional evidence in support of his application.

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 17 June 1968, he enlisted in the Regular Army for 3 years.  He was promoted to specialist four on 11 July 1969 and he immediately reenlisted on 
8 December 1969 for 6 years.

3.  He accepted nonjudicial punishment on:

* 19 January 1970, for failing to register his privately-owned vehicle
* 17 February 1970, for failing to properly clear his installation to meet his port call date

4.  His DA Form 20 (Enlisted Qualification Record) shows a period of absence without leave (AWOL) from 23 February 1970 to 15 May 1970.

5.  He departed AWOL again on 22 May 1970 and was apprehended by civil authorities on 17 October 1972.

6.  On 18 October 1972, at the U.S. Army Personnel Control Facility (PCF), Fort Riley, KS, he waived his right to counsel.

7.  The applicant's complete separation processing package was not available for review.

8.  On 6 November 1972, the applicant acknowledged he had been afforded the opportunity to consult with counsel and declined the opportunity.  In addition, the applicant: 

* waived consideration of his case by a board of officers and a personal appearance before a board of officers  
* indicated that he did not desire to submit statements in his own behalf  
* stated he understood that as a result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life  
* waived representation by counsel
* requested that he be placed on excess leave pending discharge

9.  The Commander, Processing Company, PCF recommended the applicant be discharged under the provisions of section VII, paragraph 45b, Army Regulation 635-206 (Personnel Separations  - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court , AWOL, Desertion)).  The commander stated the applicant absented himself without proper authority from on or about 22 May 1970 until on or about 17 October 1972.  The commander recommended an undesirable discharge.

10.  The applicant's DA Form 20 indicates he departed AWOL on 20 November 1972, prior to his discharge being executed.

11.  Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, Fort Riley, KS, Special Orders Number 326, dated 21 November 1972, discharged the applicant effective 22 November 1972, with an undesirable discharge.  His 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 3 months and 11 days of net active service that was characterized as under other than honorable conditions.  He had 964 days of time lost.

12.  A letter, dated 22 November 1972, from Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, Fort Riley, KS, subject: Constructive Notice of Discharge, forwarded the orders effecting the discharge of the applicant who was in an AWOL status at the time.

13.  A letter, dated 22 November 1972, sent to his last known address, notified the applicant he was discharged from the U.S. Army under the provisions of Section VII, paragraph 45b of Army Regulation 45b.  Actual notice of discharge was not given because at the time of discharge he was in an AWOL status.

14.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

15.  Section VII, paragraph 45b of Army Regulation 635-206, then in effect, stated that an individual may be considered for discharge when the unauthorized absence has continued for more than 1 year.  This regulation also provided that an individual discharged by reason of desertion or AWOL under this section would normally be furnished an Undesirable Discharge Certificate except that an Honorable or General Discharge Certificate could be furnished if the individual being discharged had been awarded a personal decoration, or if warranted by the particular circumstances in a given case.  When the whereabouts of a member were unknown, discharge could be accomplished after notification of the imminent discharge action.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), then in effect, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his wife left and took his son.  When he received news his son had been taken away from his wife due to his leg having been broken, he requested permission from his unit to go get his son, but was denied. However, he has provided no substantive evidence to support his contention.

2.  He did not specify when his wife left or when his son was taken away from her.  He departed AWOL on 23 February and returned on 15 May 1970.  Then 
7 days later, he departed AWOL again for 879 days.  He did not indicate how his going AWOL or the length of his AWOL was a solution to his situation.  The fact that he was apprehended by civil authorities after being AWOL for 879 days raises doubt as to his intent to return to military control of his own volition.  

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  His record of service shows he had 964 days of lost time.  He was in an AWOL status at the time of his discharge.  Therefore, his service was unsatisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As a result, the applicant is not entitled to a general discharge under honorable conditions.  

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)                                         AR20130000416



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ABCMR Record of Proceedings (cont)                                         AR20130000416



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