PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:                              
	DOCKET NUMBER:   AC98-09200

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests in effect, that his under other than honorable conditions (UOHC) discharge be changed to an uncharacterized description of service; that the narrative reason for separation be changed from desertion to entry level status; and that the reentry eligibility (RE) code be changed from RE-4 to RE-3. 

3.  The applicant states in effect, that the discharge was the result of a misrepresentation by the reserve recruiter and the recruiter’s lack of action to ensure his proper separation from the Army Reserve.  The applicant further contends that he was only 17 at the time of enlistment in the reserves; that he was not a mobilization asset; and that soldiers who do not ship to training are normally separated with an uncharacterized description of service by reason of entry level performance and conduct.

4.  The applicant’s military records show that he enlisted in the United States Army Reserve on 16 March 1985 for 8 years at the age of 17.  He was scheduled to report to United States Army Reception Station at Fort Leonard Wood, Missouri for his initial active duty for training (IADT) on 30 May 1985.

5.  The evidence of record shows that a letter, dated 4 September 1986, from the Chief of the Operations Division of the Reception Station at Fort Leonard Wood, requested assistance from applicant’s father in establishing the applicant’s true military status.  The letter explained that the applicant was scheduled to report for duty on 30 May 1985 and requested that any information possible concerning the applicant’s whereabouts be provided.  It further explained that the intent of the letter was to correct military records and prevent absent without official leave (AWOL) procedures from being implemented.  On 16 September 1996 a second letter was forwarded to the applicant’s father advising him that his son had been declared AWOL effective 30 May 1985, had been dropped from the rolls as a deserter effective 29 June 1985, and that military and civilian law enforcement authorities had been advised of his status and requested to apprehend him.

6.  The applicant’s version of events is that his AWOL/Desertion problems stemmed from a dispute with his recruiter.  His claim is that he and a friend had contacted the recruiter to enlist on the buddy program as forward observers; however, he alone was picked up, brought to test, enlist, and be sworn in, at which time the recruiter advised him his friend was not eligible to enlist.  He further comments that when he attended his first drill with his reserve unit his displeasure grew because he found out that his unit had no positions for a forward observer or an infantryman, positions he requested prior to his enlistment.  At this point the applicant contacted the recruiter and asked that he meet with him and his parents to discuss the situation.  
7.  At a meeting with his recruiter, with his father present, the applicant was advised that it would be impossible to change his military occupational specialty (MOS) at this point.  At this time he advised his recruiter he wanted out of the program.  He explains that the recruiter counseled him that if he did not attend his active duty for training he would receive an under other than honorable conditions discharge and that he would be ineligible to reenlist for two years.  The applicant acknowledged his understanding of the consequences and indicated that he still wanted out.  The applicant claims that at this point  the recruiter advised him he would notify the unit and process the paperwork.  The record contain a statement from the applicant’s recruiter verifying that this meeting did take place and that the applicant expressed his disappointment and requested he be let out.  The recruiter’s version of the conclusion of the meeting differs with the applicant in that he claims he advised the applicant not to handle his commitment this way and that his future could be effected but he does not admit that he was going to process paperwork and contends he only found out later that the applicant failed to attend future drills.  He concluded his statement by indicating that he felt the applicant handled the matter inappropriately but that he respected his request to upgrade his discharge. 

8.  The applicant states that soon after he was scheduled to attend basic training he received the letter advising him he was AWOL and a short time later the one that advised him he was in a deserter status and could be arrested.  At this point he contacted his reserve unit and was told he was not on their records so they could do nothing about it; and that he then contacted the recruiter who told him it was out of his hands.  The applicant’s mother made several phone calls attempting to resolve the applicant’s status with no result.  The applicant states that having received no guidance from the reserves he stopped pursuing the matter.  He goes on to say that while a freshman in college he received another letter stating that he was dropped from the rolls of the Army, a status he did not understand, and at that point he believed the matter was closed.  

9.  Orders number 54-6, dated 5 November 1986, issued by Department of the Army, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana 46249-5301, formally dropped the applicant from the rolls of the Army.  This is the effective date of the applicant’s discharge from the Army Reserves, there is no other documentation contained in the record pertaining to  the applicant’s separation from the Army reserves.  The evidence of record does seem to support the applicant’s claims that he attempted to deal with his status both through his recruiter and through his reserve unit which produced no results.  

10.  There is a regulatory alternative available to reserve units for separating soldiers prior to their reporting to their initial active duty for training (IADT).  Army Regulation 135-178 governs the separation of enlisted personnel from the United States Army Reserve and the Army National Guard.  Chapter 5 provides the procedures and criteria for the separation of enlisted soldiers because of unsatisfactory performance or conduct or both while in an entry level status (ELS).  Soldiers are considered in an ELS if they not completed 180 days of continuous and credible active military service by the date of the separation.  
Soldiers can be separated under ELS provisions if they have shown they cannot or will not adopt socially or emotionally to military life, or if they cannot meet the minimum standards prescribed for completion of training because of lack of aptitude, ability, motivation, or self discipline.  Chapter 5 goes on to say that if a soldier is processed for an entry level separation prior to attending his initial active duty for training (IADT) his reservation for training should be cancelled.  The service of soldiers separated under these provisions will be described as uncharacterized.

11.  The applicant obtained an exception to policy and enlisted in the Iowa National Guard (ING) on 13 December 1993.  He successfully completed his initial active duty for training (IADT) and was awarded military occupational specialty (MOS) 19D (Calvary Scout).  He has attained the rank of specilist/E4 and completed the reserve officer candidate course; however, his separation status from the reserves as a deserter has prevented him from being commissioned.

12.  The applicant received strong support for this request from members of his chain of command in the ING.  This support has been expressed in communications to the Board from his commander, the state personnel officer, and from two TAC officers from his regiment.  These statements all attest to the applicant’s outstanding performance of duty.

13.  The applicant applied to the Army Discharge Review Board (ADRB) for a change to his discharge status.  The ADRB by majority vote denied the request and found the discharge was proper and equitable.  There was a minority opinion expressed in the ADRB proceedings which found that the applicant should have received an entry level separation and his service should have been described as uncharacterized.  This opinion also alluded to the fact that the applicant had attempted to resolve his status with both the recruiter and his reserve unit with no results.  The minority report further opined that the Army with a minimal effort could have contacted or apprehended the applicant, as he never changed his residence from the time he entered the reserves, and if they had the applicant would have been issued an entry level separation. 
CONCLUSIONS:

1.  The Board concurs with the ADRB in that the administrative action dropping the applicant from the rolls of the Army was in compliance with applicable regulations.  However, the Board also agrees with the minority opinion of the ADRB which concluded the applicant would have been more properly dealt with by separating him by reason of entry level separation performance and conduct.

2.  The Board concluded that the applicant did not properly deal with his situation and should have complied with orders or returned to military control in order to resolve his status.  However, the Board found that the applicant’s reserve unit chain of command and the applicant’s recruiter both had an opportunity and a greater obligation to attempt to resolve the applicant’s status.  Once it was  established that the applicant desired to get out of the program, the proper action would have been to refer the applicant the chain of command at his reserve unit for counseling and appropriate action.  It is reasonable to assume that the applicant would have either reacted positively to counseling and attended his IADT or that the chain of command would have determined he lacked the necessary motivation to complete training and processed him for an ELS separation and cancelled his reporting date to IADT. 

3.  The Board also found that the Army should have expended a greater effort to contact the applicant once he failed to report to IADT.  The evidence of record shows the applicant and his parents attempted to contact someone to resolve the situation when they received the letters from Fort Leonard Wood announcing that the applicant was AWOL.  The Board concluded that with very little effort the applicant could have been contacted and or apprehended.  He could then have been returned to military control at which time he would have been in all likelihood processed for an ELS.

4.  The Board concluded that the applicant’s successful performance of duty, completion of officer candidate school, and the recommendations from members of the ING, in support of his request, attest to his commitment to military service and are indicators that the applicant was not AWOL because he lacked the desire to serve.  These factors combined with the applicant’s record of service lend credibility to his explanation of the events that lead to his being dropped from the rolls and provides mitigation of the applicant’s unintended misconduct.  

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the United States Army Ready Reserves, effective 30 May 1985, with an uncharacterized description of service.

2.  That the Department of the Army issue the individual concerned a discharge from the United States Army Ready Reserve, under the provisions of chapter 5, AR 135-178, by reason of entry level status performance and conduct, effective 30 May 1985, with a reentry code of 3, in lieu of his discharge as a deserter dated 5 November 1986.

3.  That Department of the Army expunge from the record of the individual concerned all time lost and all references to his being dropped from the rolls of the Army as a deserter which resulted from his failure to report to his scheduled IADT on 30 May 1985.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON