MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 March 2001
	DOCKET NUMBER:   AR2000043426

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

	Mr. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Mr. Lester Echols 		Member	
	Mr. Christopher  		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that he be paid all back pay and allowances due him while he was on active duty.

APPLICANT STATES:  In effect, that he was sent home to await reassignment orders that never arrived; that he was dropped from the Army's rolls as a deserter; that upon his return to military control (RMC), he was never prosecuted for being AWOL (absent without leave).  He adds that he was honorably discharged for a physical disability and receives Department of Veterans Affairs (VA) compensation.  He feels that he should be paid for all of his military service.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army for 3 years on 17 August 1967.  Following basic combat training at Fort Benning, Georgia, and advanced individual training at Fort Polk, Louisiana, he was awarded military occupational specialty (MOS) 63B, wheel vehicle mechanic, and transferred to his first permanent duty station at Fort Hood, Texas.

The applicant was assigned to Headquarters and Headquarters Company (HHC), 63rd Engineer Battalion at Fort Hood.  His records indicate that while a member of this unit:  he was promoted from Private (PVT)/E-2 to Private First Class (PFC)/E-3 on 21 May 1968; he reenlisted for 6 years and an assignment in Thailand on 23 July 1968; and he was AWOL for 7 days from 12-18 August 1968 for which he was reduced to PVT/E-2 on 21 August 1968.

As a result of his 23 July 1968 reenlistment, the applicant was issued Special Orders Number 192, Headquarters, III Corps and Fort Hood, dated 3 August 1968, indicating that he was to report to the US Army Overseas Replacement Station, Oakland Army Base, California not later than 1300 hours, 9 September 1968.  Copies of this order are contained in the applicant's records.

The applicant never reported to the Oakland Army Base and was listed as AWOL by his gaining unit on 30 September 1968.  On 5 November 1968, he was dropped from the Army's rolls as a deserter.  Officials from the Oakland Army Base wrote letters to the applicant's mother in Sheffield, Alabama informing her of the applicant's AWOL status and urging her to have the applicant RMC.

On 3 October 1969, agents of the Federal Bureau of Investigation apprehended the applicant in Gary, Indiana.  He was transported to Fort Riley, Kansas and assigned to the Special Processing Detachment.  Court-martial charges for 367 days of AWOL were preferred against the applicant upon his RMC; however, for unknown reasons, the charges were dismissed on 18 October 1969.  He was reassigned to the Medical Holding Company, Irwin Army Hospital.

The applicant underwent a physical evaluation on 10 December 1969 for a deformity of his right leg caused by a fractured right tibia and fibula incurred during a football game on 12 September 1965, 2 years prior to his enlistment in the Army.  A medical evaluation board (MEBD) on 10 December 1969 found him medically unfit for duty because of "Malunion of fracture, right tibia fibula.  Severe rotation deformity, symptomatic.  Instability, right knee, secondary to diagnosis #1."  The condition was determined to have existed prior to his service (EPTS).

The applicant indicated that he did not desire to remain on active duty and submitted a request for expeditious discharge.  In his request, he stated that he understood that his condition was EPTS and not aggravated by his military service, and that the VA would determine any entitlements to benefits.

The applicant's request for discharge was approved and he was honorably discharged on 21 January 1970 under the provisions of chapter 9, Army Regulation 635-40, by reason of "physical disability EPTS."  He had a total of 1 year, 5 months, and 4 days of creditable service and 367 days of lost time for being AWOL [the 7 days at Fort Hood are not reflected].  He was separated with temporary records and his rank was shown as PFC/E-3.

Army Regulation 635-40, Physical Evaluation for Retention, retirement, or Separation, establishes policies and prescribes procedures for the physical disability evaluation of service members for retention, retirement, or separation.  Chapter 9 of the version of the regulation then in effect dealt with the expeditious discharge of enlisted soldiers who were unfit for retention because of an EPTS physical disability.

Army Regulation 630-10, Absence Without Leave and Desertion, provides guidance for determining AWOL or desertion status.  It states that when a soldier fails to report to a gaining unit of assignment during a permanent change of station (PCS) move, the commander of that unit will take the necessary steps to report the soldier AWOL.

Department of Defense Regulation 7000.14-R, Military Pay Policy and Procedures, states, in pertinent part, that soldiers who are in an AWOL status, and the absence is unexcused, are not entitled to pay and allowances.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The record reflects that orders were issued to the applicant on 3 August 1968 reassigning him from Fort Hood to the US Army Overseas Replacement Station, Oakland Army Base, with a reporting date of 9 September 1968.

2.  There is no proof in the applicant's records to support his contention that he was placed on leave without orders and told to wait at his leave address until he received orders.  Since he was reduced from PFC to PVT by his command at Fort Hood on 21 August 1968, it appears that he remained at Fort Hood until at least 21 August 1968.  Given those circumstances, it seems likely that he was in receipt of his reassignment orders before leaving Fort Hood.

3.  The applicant's lengthy AWOL was ended by his apprehension by the FBI on 3 October 1969.  He was transferred to Fort Riley and court-martial charges were preferred against him.  Although the record reflects that these charges were later dismissed, the rationale for this action is not given.

4.  The fact that the applicant was not tried or punished for being AWOL does not excuse his absence.  In fact, the applicant's DD Form 214, Report of Transfer or Discharge, clearly shows that he was charged with 367 days of lost time due to AWOL.  By regulation, the applicant was not entitled to any pay and allowances during this entire period.

5.  The applicant was properly discharged by reason of physical disability for an EPTS condition.  He concurred with the findings and recommendation of the MEBD and indicated that he desired to be discharged.  He also acknowledged that he understood that any issue of disability compensation would be a matter between the applicant and the VA.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jns____  __le____  __cjp ____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000043426	
SUFFIX		
RECON		
DATE BOARDED	20010329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	128.0000	
2.	145.0000	
3.		
4.		
5.		
6.