IN THE CASE OF:	  

		BOARD DATE:  15 October 2013

		DOCKET NUMBER:  AR20130003048 


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 an upgrade of his discharge under other than honorable conditions. 

2.  The applicant states:

* it was not his fault that the Army did not provide him transportation back to Germany
* he does not think he got a fair discharge
* he did everything he was told
* every time he contacted the Air Force Base at Fort Worth, TX, like the Army told him to do, he was told they would call him when the Army contacted them
* he never heard from them or the Army until 1986 when the Army sent him all of his clothes and an under other than honorable conditions discharge  

3.  The applicant provides no additional documentary evidence.

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 3 March 1980 for a period of 3 years.  He completed training and was awarded military occupational specialty 13B (cannon crewman).  He arrived in Germany on 21 December 1981.

3.  Records show his duty status changed from on leave to being absent without leave (AWOL) on 13 February 1982.  He was dropped from the rolls (DFR) of his unit as a deserter on 12 March 1982.

4.  On 19 September 1985, a notification letter was sent to the applicant that stated, in pertinent part, "A review of your military personnel records failed to produce a record of your discharge from the service.  Available documentation indicates that you are in a status of desertion and are eligible for a discharge in absentia."  He was advised his anticipated discharge would be under other than honorable conditions, receipt of such a discharge might deprive him of many or all the veteran benefits administered under Federal and State laws, and that he might encounter substantial prejudice in obtaining employment and other benefits.  He was also offered the opportunity to submit a statement in his own behalf.  He was also advised that if a response was not received within 45 days from the date of the letter, the discharge action would be taken to affect his discharge. 

5.  Records show the applicant signed for the notification letter (certified mail) on 7 October 1985.

6.  His records contain a decision paper, dated 29 January 1986, which states:

	a.  The purpose of this decision paper is to discharge the applicant in absentia due to expiration of the statue of limitations on prosecution.

	b.  He was reported AWOL on 13 February 1982 and DFR on 12 March 1982.

	c.  Discharge in absentia has been prepared because "a person charged with desertion in time of peace or any of the offenses punishable under sections
919-932 of this title (Articles 119-132) is not liable to be tried by court-martial if the offense was committed more than 3 years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command…" (10 U.S. Code 843; Article 43, Uniform Code of Military Justice (UCMJ).

	d.  A letter of notification of discharge eligibility was forwarded to the applicant on 19 September 1985.

	e.  The applicant has not been under military control since 13 February 1982 and is eligible for discharge in absentia.

	f.  It is recommended the applicant be discharged in absentia effective 
29 January 1986.  

7.  He was discharged in absentia on 29 January 1986 with a discharge under other than honorable conditions under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct (desertion).  He had 1 year, 11 months, and 10 days of creditable active service with 1,442 days of lost time.

8.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories included fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct.  Paragraph 14-24 provided that an absentee beyond military control by reason of unauthorized absence may be discharged in absentia when the notice procedures set forth in paragraph 14-31 were followed.  Paragraph 14-31 provided that the Commander, U.S. Army Enlisted Records and Evaluation Center would notify the service member of the basis for the pending discharge action, the effective date thereof, the type of discharge to be issued, and its effect.  A letter would be forwarded by certified mail, return receipt requested, to the record address of the member, or next of kin, as appropriate.  If a reply was not received within 45 days from date of delivery, the discharge action would be completed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.    


	b.  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.  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's contention that it was not his fault the Army did not provide him transportation back to Germany was noted.  However, the Soldier is responsible for all costs pertaining to ordinary leave.

2.  Although he contends he never heard from the Army until 1986, the evidence shows on 7 October 1985 he signed for the notification letter pertaining to his pending discharge in absentia.  The letter provided him the opportunity to return to military control (the nearest military installation) to resolve his military status.    

3.  Since his record of service included 1,442 days of lost time, his service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no 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)                                         AR20130003048



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ABCMR Record of Proceedings (cont)                                         AR20130003048



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