IN THE CASE OF:	  

		BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130014957 


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 to honorable.

2.  The applicant states:

* he served two separate terms of enlistment
* after his first enlistment, he was allowed to reenlist and he was given an honorable discharge
* after his reenlistment, he started having marital problems
* his wife would call his unit commander when his unit was in the field for exercises
* he provides a positive influence to the community where he lives 

3.  The applicant provides:

* character reference letters
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 27 August 1973 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).  On 18 July 1976, he was honorably discharged for immediate reenlistment.  On 19 July 1976, he reenlisted for a period of 4 years.

3.  In January 1978, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 31 December 1977 to 1 January 1978.

4.  Records show his duty status changed from present for duty to being AWOL on 13 February 1978.  He was dropped from the rolls of his unit as a deserter on 13 March 1978.

5.  On 6 April 1981, a notification letter was sent to the applicant that stated, in pertinent part, "You are charged with desertion from the United States Army effective 13 March 1978 from Combat Support Company, 1st Battalion, 12th Cavalry, 1st Cavalry Division, Fort Hood, Texas 76545.  A recent review of your records shows that you are eligible for a discharge in absentia."  He was advised his anticipated discharge would be under other than honorable conditions and receipt of such a discharge might deprive him of many or all the veteran benefits administered under Federal and State laws.  He was 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 complete his discharge. 

6.  Records show the notification letter (certified mail) was returned and stamped "Forwarding Order has Expired."

7.  He was discharged in absentia on 20 April 1981 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, 6 months, and 24 days of creditable active service during the period under review with 1,158 days of lost time.



8.  He provides three character reference letters from a fire chief, employer, and friend who attest:

* the applicant has been a member of or involved with the Montezuma fire district in San Joaquin County for the past 15 years
* throughout his career as a Reserve fire fighter he has demonstrated professionalism, devotion, and good faith effort towards the community
* he is an asset to the community
* he has been a productive and reliable worker through his career in the feed industry since 1984
* he adopted four children from foster care
* he has strong character, ethics, morals, and values   

9.  In 1991, he applied to the Army Discharge Review Board for an upgrade of his discharge, but in 1992 he withdrew his application.

10.  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 contends he had marital problems during his second enlistment.  However, there is no evidence he sought assistance from his chain of command or chaplain in resolving his marital problems within established Army procedures prior to leaving his unit (desertion).

2.  The character reference letters submitted on behalf of the applicant fail to show his discharge was unjust and should be upgraded.

3.  He contends he provides a positive influence to the community where he lives.  However, good post-service conduct alone is not a basis for upgrading a discharge.

4.  Since his record of service during his last enlistment included one NJP and 1,158 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.

5.  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.

6.  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)                                         AR20130014957





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130014957



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1