IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150006119 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, in effect, an upgrade of his under other than honorable conditions discharge so he may qualify for benefits. 2. The applicant states he was young at the time and did not understand the actions that led to his discharge. 3. The applicant does not provide any 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's records show he was born in December 1959 and enlisted in the Regular Army for a period of 3 years at age 18 on 5 September 1978. He held military occupational specialty 13B (Cannoneer). 3. He served in Germany from 27 December 1978 to on or around 4 January 1980. He was assigned to Battery C, 1st Battalion, 36th Artillery. 4. On 4 January 1980, he departed his unit in an absent without leave (AWOL) status and on 3 February 1980, he was dropped from the rolls as a deserter. He never returned to military control. 5. On 21 March 1984, by letter, the U.S. Army Enlisted Record and Evaluation Center, Indianapolis, IN, made a determination regarding the disposition of his case. His records contain a memorandum requesting his administrative discharge in absentia. However, prior to making a final disposition of his case, the Chief Enlisted Services Division, U.S. Army Enlisted Record and Evaluation Center, notified the applicant that: a. A review of his records failed to produce his discharge from the service and since he was still in a status of desertion, he was eligible for discharge in absentia. This discharge would be under other than honorable conditions which would deprive him of many or all veterans’ benefits administered under Federal or state laws. Additionally, he may encounter substantial prejudice in obtaining employment and other benefits. b. Prior to the issuance of this discharge, he was being provided an opportunity to submit a statement on his own behalf. Such statement should include any extenuating or mitigating circumstances that he felt had a bearing on the type of discharge to be issued. c. If he desired to return to military control to resolve his military status, he should report to the nearest military installation within his area with a copy of this letter. If he did not return to military control or respond to this letter within 45 days, action would be taken to effect his discharge. 6. The certified mail receipt shows he signed for the letter. 7. There is no evidence in his military records that shows he returned to military control, reported to a military installation, or submitted a statement of any extenuating or mitigating circumstances that he felt had a bearing on the type of discharge to be issued. 8. On 22 May 1984, the U.S. Army Enlisted Record and Evaluation Center, Indianapolis, IN, published Orders 61-7 ordering his discharge from active duty effective 22 May 1984. 9. Accordingly, he was discharged on 22 May 1984. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 22 May 1984 in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of misconduct-commission of a serious offense (desertion). He was credited with 1 year, 3 months, and 29 days of active service with 606 days of lost time. 10. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 11. Army Regulation 635-200, in effect at the 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 include 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. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. a. Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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 applicant enlisted in the Regular Army for a period of 3 years. A year and 3 months into this enlistment, he left his unit in an AWOL status. A month later, he was dropped from Army rolls as a deserter. He never returned to military control. 2. The U.S. Army Enlisted Record and Evaluation Center conducted a review of his records and made a determination of the disposition of his case. The applicant was provided an opportunity to return to military control and report to a military installation, and/or submit a statement of any extenuating or mitigating circumstances that he felt had a bearing on the type of discharge to be issued. He did not do so. Accordingly, the Army discharged him in absentia. 3. His record contains a DD Form 214 that shows he was discharged on 22 May 1984 under the provisions of chapter 14 of Army Regulation 635-200 for misconduct-commission of a serious offense with an under other than honorable conditions discharge. Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. 4. The applicant was age 18 at the time of enlistment and approximately 20 years of age at the time of his offense. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age. 5. Based on his extensive period of AWOL (indiscipline), his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. He does not meet the criteria for an upgraded 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) AR20150006119 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006119 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1