IN THE CASE OF:	  

		BOARD DATE:	    2 December 2014

		DOCKET NUMBER:  AR20140004045 


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, in effect, his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he had a 3-month old baby and he had kidney stones.  He always had complications when he was first drafted.

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 11 September 1969, he was inducted into the Army of the United States.  

3.  On 23 October 1969, he received nonjudicial punishment (NJP) for being absent from his appointed place of duty.

4.  On 13 January 1970, he was reported being absent without leave (AWOL) by Company E, 3rd Battalion, 1st Advanced Individual Training Brigade.  On 
14 February 1970, he was dropped from the unit rolls (DFR).

5.  On 8 September 1971, he was convicted by the State of Texas of burglary with intent to commit theft.  He was sentenced to 4 years confinement; however, his sentence was suspended and he was placed on probation for 4 years.

6.  On 21 December 1971, the order suspending his sentence was revoked and he was remanded to the Texas Department of Corrections (TDC) to be confined for not less than 2 years nor more than 4 years.

7.  A letter, dated 25 July 1975, from U.S. Army Enlisted Records Center, Fort Benjamin Harrison, IN notified U.S. Army Forces Command (FORSCOM) the applicant was confined by the TDC, Huntsville, TX and recommended he be considered for discharge under the provisions of Section VI (Conviction by Civil Court) of Army Regulation 635-206 (Discharge, Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)).  

8.  The fourth endorsement to the above letter, dated 5 September 1975, from the U.S. Army Personnel Control Facility (USAPCF), Fort Hood, TX stated the applicant was being recommended for separation from the service under the provisions of Section VI of Army Regulation 635-206.

9.  A letter, dated 4 June 1976, from the U.S. Army Enlisted Records Center notified the U.S. Army Training and Doctrine Command (TRADOC) the applicant was confined by the TDC, Huntsville, TX and recommended he be considered for discharge under the provisions of Section VI of Army Regulation 635-206.

10.  There is no record the applicant was processed for discharge under the provisions of Section VI of Army Regulation 635-206 while he was confined.

11.  On 18 November 1976, the applicant was released from the TDC.  He was determined to be AWOL from USAPCF, Fort Hood, TX from 19 November 1976.

12.  A letter, dated 19 February 1988, from the U.S. Army Deserter Information Point was forwarded to the applicant's home of record advising him a review of his military personnel records failed to produce a record of his discharge from the service.  Available documentation indicated he was in a status of desertion and he was eligible for a discharge in absentia.
	a.  It was anticipated that such discharge would be under other than honorable conditions and that such discharge may deprive him of many or all of the benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs) and benefits as a veteran under Federal and State laws.  

	b.  Prior to his discharge he was being afforded the opportunity to submit a statement in his own behalf which may include any extenuating, mitigating, or aggravating circumstances he felt should have a bearing on the type of discharge he was to receive.  

	c.  If he desired to return to military control to resolve his military status, he should report to the nearest military installation within his area of residence and have in his possession a copy of the letter and any documentation pertaining to his military service.

	d.  The applicant was advised that if he failed to reply with the letter or return to military control within 45 days from the date of the letter, action would be taken to complete his discharge.

13.  On 8 March 1988, the applicant submitted a statement.  He stated after completing his advanced individual training he went home on leave and while he was home his wife gave birth to their first child.  He brought them back to base and stayed at the guest house for 2 weeks but it was so cold and the snow was so bad his daughter had pneumonia.   He was being treated for a pain in the right lower part of his back and the doctor told him he had an infected kidney.  He requested a hardship discharge.  He went home waiting for a decision on his discharge, but didn't come back because he was worried about his daughter.  He knew he should have reported back, but he didn't.  He didn't really like the Army then but now he wishes he was able to start all over.  During his absence he went to prison for 4 years.

14.  On 29 April 1988, he was discharged in absentia.  A letter, dated 29 April 1988, from U.S. Army Deserter Information Point forwarded his DD Form 214 and his discharge orders to him.

15.  Army Regulation 635-200 (Personnel Separations, Enlisted Personnel), then in effect, set policies, standards, and procedures to insure the readiness and competency of the force while. providing for the orderly administrative separation of soldiers for a variety of reasons.

	a.  Paragraph 2-15a stated an absentee beyond military control by reason of unauthorized absence was discharged in absentia when prosecution appeared to be barred by the statute of limitations.  

	b.  Paragraph 2-15b stated before separation was executed a letter notifying the individual of the basis for the pending discharge action, the effective date thereof, the type of discharge to be issued and its effect was forwarded by certified mail, return receipt requested, to the record address of the member, or next of kin.  The notice stated that the action was suspended until a specific date (not less than 30 days from the date of mailing) to give the Soldier the opportunity to return to military control.  If the Soldier had not returned to military control by such date the separation authority took appropriate action took separation the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The length of his AWOL and the seriousness of his civil conviction clearly show his service be unsatisfactory.  Therefore, there is no basis on which to upgrade his discharge to either an honorable or general 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)                                         AR20140004045



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ABCMR Record of Proceedings (cont)                                         AR20140004045



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