MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           30 October 2001                  
	DOCKET NUMBER:   AR2001058288

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Harry B. Oberg		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:  That the charge of desertion be removed from his records and that his undesirable discharge be upgraded to a general discharge.

APPLICANT STATES:  While he admits that he did not faithfully attend all scheduled unit training assemblies (drills), he was in the reserves and it wasn’t a time of war, so he didn’t know the ramifications of his failure to attend drills.  He contends that he missed the drills because of family problems and never received his active duty orders.  Also, he was not aware that an undesirable discharge would haunt him the rest of his life.

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

He enlisted in the Army Reserve (USAR) on 19 July 1972.  At that time he signed a 1AA Form 838 acknowledging that he understood that he was required to attend all regularly scheduled drills with his USAR unit, what the conditions were that would authorize being excused from drills, and what the procedures were to request excuse from attending drills.  In this form it was also explained that if he accumulated 5 or more unexcused absences within a year he would be ordered to involuntary active duty.

The applicant missed two drills on 7 October 1973, he missed one drill on 6 January 1974, and he missed four drills on 7 and 8 September 1974.  He was sent letters notifying him of his unexcused absence after each period of missed drills and reminding him that if he accumulated 5 unexcused absences within 12 months he would be ordered to involuntary active duty.  These letters were sent by certified mail to his home of record listed in his enlistment contract.  He signed for two of the three letters.

On 24 February 1976 the applicant was notified by certified mail that he had been recommended for involuntary active duty based on his failure to attend drills and of his right to appeal that decision.  That letter, sent by certified mail, was returned as unclaimed.

On 24 May 1976 orders were published directing that the applicant report for 19 months and 15 days of active duty effective 8 July 1976.  Those orders were sent to the same address that the applicant had listed as his home of record when he enlisted.

The applicant did not report for active duty and was apprehended by law enforcement officials and returned to military control on 10 November 1976.  Court-martial charges were then preferred against the applicant for being absent without leave (AWOL) from 8 July to 10 November 1976.  

On 30 November 1976 the applicant requested discharge in lieu of court-martial for the good of the service (for AWOL).  In that request, he acknowledged his guilt, he acknowledged that if his request was accepted he could receive an undesirable discharge, he acknowledged that he had been counseled that he would lose most if not all veterans benefits, and that he was advised that he “may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.”  However, the applicant did submit a letter to the convening authority along with his request for discharge.  In that letter the applicant stated that the reason he had gone AWOL was because he had family and financial problems, and that his personal problems came before his military obligation.

The address listed on the applicant’s request to the Board is the same as his home of address listed on his enlistment contract.

Army Regulation 135-91, Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures, then in effect, defines an unsatisfactory participant as a Reservist who accrues five or more unexcused absences from scheduled drills in a 1-year period.  This regulation also states that mail (notification of unexcused absences) refused, unclaimed or otherwise not delivered may not be used as a defense against unexcused absences, when the notices were correctly addressed to the latest official mail address furnished by the unit member.

Army Regulation 135-178, Separation of Enlisted Personnel, in effect at the time, paragraph 3-21, provided for ordering to involuntary active duty, or for discharging, statutorily obligated unsatisfactory participants with less than 24 months active duty. 

Army Regulation 630-10, then in effect, paragraph 1-3 defines deserter, for administrative purposes, as any military member absent without proper authority who has been dropped from the rolls of his organization as a deserter.  Paragraph 3-2 states that a soldier is dropped from rolls of an organization upon expiration of 29 consecutive days of unauthorized absence.

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

1.  The Board does not accept the applicant’s contention that he was not aware that he would be ordered to active duty if he failed to attend drill.  He acknowledged by his signature on numerous occasions that he would be ordered to involuntary active duty if he failed to attend drills.

2.  The Board does not accept as a valid defense that the applicant was not provided his active duty orders.  He did not change addresses.  That he chose not to claim his mail does not, by regulation, negate the validity of official correspondence mailed to the last address furnished by a reservist.
3.  As such, the Board concludes that the applicant was properly processed for unsatisfactory participation, was properly ordered to active duty, was properly carried as AWOL, and properly had court-martial charges preferred due to his period of AWOL.  The Board also finds no error or injustice in the acceptance of his voluntary request for discharge to avoid the possibility of incarceration inherent with a trial by court-martial.

4.  As for the applicant being carried as a deserter, he was properly administratively classified as a deserter when he exceeded 29 days of AWOL.  Whether or not the AWOL was during a time of war or national emergency has no bearing on that classification.

5.  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

__cla____  ____aao_  ___hbo__  DENY APPLICATION

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

INDEX

CASE ID	AR2001058288	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011030	
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.	134.03	
2.		
3.		
4.		
5.		
6.