PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           31 March 1999                   
	DOCKET NUMBER:   AC84-01834A
				   AR1999015217

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Walter T. Morrison		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.  Applicant requests a reconsideration of his previous application to correct his records by affording him an honorable discharge and restoring his rank of E-5 with entitlement to back pay and allowances.  He states, in effect, that he would never intentionally have been AWOL had he not lost all faith in the Army to treat him fairly.

3.  The applicant’s service records show that he entered active duty on 20 March 1968.  He was a truck driver in Vietnam from August 1968 to August 1969.  He served without any incident of record, earned excellent conduct and efficiency ratings and was promoted to pay grade E-5.  Upon reassignment to Ft. Knox, he reported in with no reporting date on his orders, he was directed to take his authorized leave and advised that additional orders would be forwarded to him.  The next entry in his records shows his declaration, as a deserter, and the issuance of a deserter letter, dated 9 February 1970, to his wife.  The applicant voluntarily surrendered to authorities at Ft. Knox.  The record shows that he was found guilty of being AWOL for 148 days (21 September 1969 to 16 February 1970) by a special court-martial on 22 March 1970.  His adjudged sentence was forfeiture of eighty dollars per month for three months, confinement at hard labor for two months and reduction to grade E-1.  Due to this lost time he was extended on active duty beyond his normal separation date of 20 March 1970.  He again went AWOL on 2 May 1970.  He turned himself in to military authorities on 19 January 1975 and was issued an undesirable discharge on 22 January 1975.  Under the provisions of Presidential Proclamation 4313, he successfully completed the alternative service requirements and was granted a clemency discharge on 11 March 1976. By review under the Special Discharge Review Program, his discharge was upgraded to a general discharge on 16 February 1978.

4.  The record contains four sworn affidavits from personnel who were assisting the applicant, that attest to the fact they had personally assisted the applicant in his repeated attempts to report to Ft. Knox and confirm his statements that he was turned away by military officials due to the problems with his orders.  Further, it contains two letters from the Executive Secretary, Selective Service System, Local Board 166, a letter from the local recruiting sergeant and a letter from the Floyd County Judge in Prestonsburg, KY, all attesting to the fact that the applicant had come to them for assistance on the problems of his not being able to report in and their involvement in these attempts.  These documents were of record at the time of his discharge with the latter four being of record at the time of the court martial.

5.  The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.
CONCLUSIONS:

1.  Based on the evidence of record, it appears that the applicant took all appropriate steps to resolve his reporting date prior to being declared a deserter.

2.  While this Board cannot disturb the finality of the court martial conviction, it considers, based upon the supporting statements at the time of his court-martial, the court-martial to be inappropriate, and therefore, the sentence was unduly harsh and the ultimate outcome unjust.

3.  Had the applicant not received the inappropriate court-martial and the severe sentence, it is reasonable to conclude that he would have successfully completed his obligated service and would have been released at his normal separation date as an E-5 with an honorable discharge.

4.  This Board is not empowered to grant restoration of funds in contravention to the six year statute of limitations on monetary payments.

5.  In view of the foregoing findings and conclusions, it would be appropriate, as a matter of clemency and in the interest of injustice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  Setting aside the reduction in grade from E-5 to E-1, the forfeiture of eighty dollars a month for three months, and confinement at hard labor for two months;

b.  expunging the lost time from 21 September 1969 to 16 February 1970 and from 2 May 1970 to 19 January 1975;

c.  voiding his general discharge issued on 16 February 1978;

d.  showing he was given an honorable discharge from the Army on 10 March 1970; and,

e.  issuing the individual concerned an Honorable Discharge Certificate and Report of Separation from Active Duty (DD Form 214), effective 19 March 1970, by reason of completion of obligated service.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

  CWB           JHK       WTM        GRANT AS STATED IN RECOMMENDATION

                                GRANT FORMAL HEARING

                                DENY APPLICATION

		        Curtis W. Barbee        
		        CHAIRPERSON        

INDEX

CASE ID	AC84-01834A
AR1999015217	
SUFFIX	A	
RECON	YYYYMMDD	
DATE BOARDED	19990331	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19750122	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	191	
2.		
3.		
4.		
5.		
6.