RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            20 APRIL 2004                  
	DOCKET NUMBER:   AR2003094644

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. Lawrence Foster		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he was not AWOL (absent without leave).  His service was honorable.  He states that he never received orders to report to Fort Sill, Oklahoma.  He served honorably in the Air Force, Air Force Reserve, and the Army National Guard.  He was lied to by National Guard officers at Rock Springs, Wyoming.  He tried to work out for two or three months.  Members of his Guard unit did not know him, so he quit.  No orders were prepared on him.  Later, his cousin called and informed him that the military police were looking for him.  So he called them from Wyoming.  He drove to Phoenix and received orders and a ticket to fly to Fort Ord, California, and was informed that he would receive a discharge.  After researching his records he was directed to sign, and that he would receive an honorable discharge after 30 days.  He states that he has been lied to for 23 years.

3.  The applicant provides a copy of his 23 April 1980 DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his 17 September 1975    DD Form 214 (Report of Transfer or Discharge) releasing him from active duty from the Air Force, a copy of his 21 May 1978 NGB Form 22 (Report of Separation and Record of Service) discharging him from the Army National Guard of Wyoming, a copy of his United States Air Force Honorable Discharge Certificate, and a copy of his Discharge Under Other Than Honorable Conditions Certificate from the Army.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 23 April 1980.  The application submitted in this case is dated 24 July 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant served in the Regular Air Force from 6 March 1974 until his release from active duty on 17 September 1975.  His character of service was honorable.  He was discharged from the Reserve of the Air Force on 11 February 1976.  On 12 February 1976 he enlisted in the Wyoming Army National Guard for 4 years, 1 month, and 4 days.
4.  On 16 January 1977 the applicant signed a 6AA Form 15 (Acknowledgment of Reserve Obligation and Responsibilities) stating that he had been counseled relative to his Reserve obligation and responsibilities and that he fully understood that if he was not excused from scheduled training periods by proper authority, he was considered absent without leave and charged with an unexcused absence; that if he was charged with five unexcused absences, he would be ordered to 24 months active duty, less any periods of active duty for training previously served and subject to reduction in grade; that he was responsible for informing his unit in advance of any change in his address; and that he was to immediately contact his unit commander, or the individual so designated by him, should any condition arise which precluded his attendance at a scheduled training period.     

5.  On 27 September 1977 the applicant's commanding officer informed the applicant that he was absent from scheduled training assemblies on 9, 10, and 11 September 1977.  He was charged with 4 unexcused absences.  The applicant was also informed that should he be classified as an unsatisfactory participant, he would be ordered to active duty.  The applicant acknowledged receipt of the notification of unexcused absences on 8 October 1977.  

6.  In an 8 October 1977 memorandum, the applicant's commanding officer indicated that the applicant had stated that he had a difficult time financially and was unable to attend drills due to a job conflict.  The applicant would like to stay in the National Guard and attend drills on a regular basis.  The applicant was also having trouble getting his pay.  The applicant's commander indicated that his transfer between two units caused the mix up, and he doubted that the problem could be satisfactorily resolved.

7.  On 17 November 1977 the applicant's commanding officer notified the applicant that he was absent from the unit training assemblies on                         5 and 6 November 1977, and unless the absences were excused he would have accrued 8 unexcused absences within a one-year period.  On that same date, he was informed that he was charged with 8 unexcused absence, and since he did not submit a request that he be excused from drill on 5 and 6 November 1977, he [the commanding officer] would request that the applicant be ordered to active duty.  The applicant was also informed that he could appeal the decision. 

8.  In a 19 December 1977 memorandum, the applicant's commanding officer stated that following his talk with the applicant during the October drill, he felt that there was some substance to his allegations, and he decided to give the applicant another chance; however, the applicant did not attend the following drill, nor did he request an excuse from the drill.  He stated that the applicant had made no contact with him or unit personnel with regard to the unexcused absence, and that he was justified in ordering him to active duty.  

9.  On 17 January 1978 the applicant's commanding officer recommended to The Adjutant General, State of Wyoming that the applicant be ordered to involuntary active duty.

10.  In a 13 April 1978 letter to the applicant, Sixth United States Army indicated that it enclosed orders directing the applicant to report for active duty.  In a        25 April 1978 endorsement to the applicant, The Adjutant General, State of Wyoming, indicated that it enclosed orders ordering him to active duty effective 22 May 1978, and orders discharging him from the Wyoming Army National Guard effective 21 May 1978.  The correspondence was forwarded by certified mail.  The applicant receipted for the correspondence on 29 April 1978. 

11.  Orders dated 21 April 1978 show that he was discharged from the Army National Guard on 21 May 1978 and assigned to the Army Reception Station, Fort Sill, Oklahoma.  That order shows that he was ordered to involuntary active duty.

12.  Orders published by Sixth United States Army on 7 April 1978 show that the applicant was assigned to the Army Reception Station at Fort Sill with a reporting date of 22 May 1978.  His active duty commitment was 5 months and 18 days.  

13.  The applicant failed to report to his active duty assignment and was AWOL.  On 20 June 1978 he was dropped from the rolls.  The applicant surrendered to military authorities in Phoenix and was returned to military control on 17 August 1979.  On 29 August 1979 orders were publishing assigning the applicant to the Army Personnel Control Facility at Fort Ord, California, effective on 17 August 1979.  

14.  The applicant was discharged under the provisions of Army Regulation    635-200, chapter 10, under other than honorable conditions on 23 April 1980.  He was in an excess leave status from 23 August 1979 until the date of his discharge.    

15.  The applicant's discharge proceedings are not available.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he did not receive orders directing him to report to Fort Sill is contradicted by evidence showing that he receipted for correspondence directing him to report for active duty at Fort Sill.  Consequently, his contention is not accepted.  

2.  Although the discharge proceedings are not available, in the absence of evidence to the contrary, it is presumed that the proceedings were conducted in accordance with law and regulations applicable at the time.  There is no evidence, nor has the applicant provided any, to indicate otherwise, nor is there any evidence to show that he was lied to, or that he was informed that his discharge would be honorable.  In view of the applicant's extensive period of AWOL, the character of his discharge is proper.
   
3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   
  
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 April 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         22 April 1983.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__TDH __  __JLP___  __LF____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		___Thomas D. Howard_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003094644	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040420	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.