IN THE CASE OF:	  

		BOARD DATE:	 16 December 2014 

		DOCKET NUMBER:  AR20140007541 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states:

	a.  He was serving in Korea when there were some family issues at home.  His commander sent him home on emergency leave via a military aircraft (MAC) flight.  When it was time to return to Korea, he did not have enough money for the return flight.  He went to Offutt Air Force Base (AFB), NE, to try to get on a MAC flight, but he could not do so.  

	b.  Once he went into an absent without leave (AWOL) status, he called his company commander for advice.  He was told to turn himself in at the nearest military installation.  He went to Offutt AFB to do so and was told they did not want him.  He went to see the chaplain but that didn't work out either.  He called his company commander again, explained the situation, and was told to just get back.  

	c.  After a period of time of not being able to resolve his issue, he hired counsel to clear up the matter.  He was given a discharge and told he could file for an upgrade after 2 years.  It is something he is not proud of and he wishes it never happened.  

3.  The applicant provides no additional 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 (RA) on 26 July 1983 and he held military occupational specialty 51R (Interior Electrician).  He was assigned to Company B, 44th Engineer Battalion, Korea, on an unknown date.  The highest rank/grade he held was specialist four (SP4)/E-4.

3.  On 4 October 1986, he was reported in an AWOL status from his assigned unit and he never returned.  

4.  His record contains a DA Form 2496 (Disposition Form) to the 199th Personnel Service Center (PSC), Korea, dated 25 June 1987, from the Commander, 44th Engineer Battalion.  The commander stated that due to past neglect by the Battalion S-1, no DFR packet was done on the applicant and another Soldier.  At present, there was no record of any kind on either individual and it would be impossible for the S-1 to complete DFR packets without the facts.

5.  On 6 June 1988, a message was sent to the Commander, PSC, Korea, from the Chief, U.S. Army Deserter Information Point, Fort Benjamin Harrison, IN, in reference to the applicant.  The message stated:

	a.  The current Standard Installation/Division Personnel System entry showed the applicant was DFR as a deserter on 18 October 1986 from Company B, 44th Engineer Battalion.  His DA Form 201 (Military Personnel Records Jacket (MPRJ)) had been received but did not contain documents to show he was reported as AWOL and DFR as a deserter.  

	b.  It was urgently requested they forward a DFR packet as soon as possible to include DA Forms 4187 (Personnel Action) for "Present for Duty" to "AWOL" and "AWOL" to "DFR as a Deserter."  Also needed was a DD Form 458 (Charge Sheet), DA Form 553 (Deserter/Absentee Wanted by the Armed Forces), and his MPRJ.  The DFR packet was needed so apprehension efforts could be initiated.

6.  On 8 December 1989, the applicant was sent a letter from the Chief, Records Service Division (RSD), Fort Benjamin Harrison.  The letter stated an audit of military personnel records failed to produce any evidence of his discharge or separation from military service.  If he had been discharged, he was asked to provide their office of a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and separation orders.  If he had not been discharged, he was asked to contact the RSD as soon as possible so the matter of his unauthorized status could be resolved.  His record is void of any evidence that shows the applicant responded to the letter and contacted the RSD.

7.  On 28 March 1990, he was sent a second letter from the Chief, RSD.  The letter stated:

	a.  A review of his MPRJ failed to produce a record of his discharge from the service.  Available documentation indicated that he was in a deserter status and was eligible for a discharge in absentia.  It was anticipated his discharge would be under other than honorable conditions and the discharge may deprive him of both Department of Veterans Affairs benefits under Federal and State laws.  In addition, he may encounter substantial prejudice in obtaining employment and other benefits.

	b.  Prior to the issuance of a discharge certificate, he was being offered the opportunity to submit a statement in his own behalf.  His statement should include any extenuating or mitigating circumstances he felt should have a bearing on the type of discharge to be issued.  Should he desire to return to military control to resolve his status, he should report to the nearest military installation with a copy of the letter and any other documentation pertaining to his military service.

	c.  If he did not return to military control or respond to the letter, action would be taken to affect his discharge.  His record is void of any evidence that shows he responded to the letter, contacted the RSD, or reported to the nearest military installation.

8.  Orders 25-2, dated 20 April 1990, issued by Headquarters, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN discharged him from the RA effective 20 April 1990.  These orders stated he was not entitled to pay and allowances from 4 October to 1986 through 20 April 1990 and he was reduced to the lowest grade in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-4.
9.  The DD Form 214 he was issued shows he was discharged on 20 April 1990 in the rank of private under the provisions of Army Regulation 635-200, chapter 14, misconduct - commission of a serious offense - desertion with an under other than honorable conditions characterization of service.  He completed 3 years, 2 months, and 20 days of net active service with 1,292 days (3 years, 6 months, and 17 days) of lost time due to being AWOL.

10.  There is no indication he 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, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

12.  Army Regulation 635-200, 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 evidence of record confirms the applicant committed the serious offense of desertion.  On 4 October 1986, he went AWOL from his assigned unit and never returned; he was subsequently DFR as a deserter.  Although his unit failed to process his DFR packet, his deserter status was confirmed.  On 8 December 1989, he was notified by the RSD, Fort Benjamin Harrison to contact them immediately so his unauthorized status could be resolved.  His record is void of any evidence that shows he did so.

2.  On 28 March 1990, he was notified by the RSD, Fort Benjamin Harrison that he was eligible for a discharge in absentia and he would probably receive an under other than honorable conditions discharge.  He was advised he could return to military control and could submit a statement in his own behave to present any mitigating circumstances he felt should have a bearing on the type of discharge to be issued.  If he did not return to military control or respond to the letter, he would be discharged in absentia.  His record is void of any evidence 
that shows he responded to the letter or submitted a statement in his own behalf. He was discharged in absentia on 20 April 1990 under the provisions of Army Regulation 635-200, chapter 14, commission of a serious offense - desertion.

3.  His separation action 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 reason for discharge were appropriate considering all the facts of the case.

4.  At the time of his discharge, he had been AWOL for over 3 and one half years.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20140007541



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ABCMR Record of Proceedings (cont)                                         AR20140007541



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