BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160001257 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ___x_____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160001257 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. removing all documents showing the applicant was absent without leave or in a deserter status from his Official Military Personnel File and b. adding the following documents to his Official Military Personnel File: * Honor Graduate letter, dated 17 September 1968 * Infantry Noncommissioned Officer Candidate Course Diploma, dated 17 September 1968 * Headquarters, The Candidate Brigade (Provisional), U.S. Army Infantry School, Special Orders Number 94, dated 17 September 1968 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to notifying the Federal Bureau of Investigation; the New Castle, Pennsylvania, Police Department; the Lawrence County, Pennsylvania, Sheriff's Office; and the Lawrence County, Pennsylvania, Bureau of Records that the absent without leave/deserter charges were an administrative error and should be expunged from their records. _____________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. BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160001257 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 removal of the following documents and any other documentation indicating he was absent without leave (AWOL) or a deserter from his Official Military Personnel File (OMPF): * DD Form 173 (Joint Messageform), dated 20 November 1975 * Optional Form 41 (Routing and Transmittal Slip), dated 20 November 1975 * DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 13 January 1976 * U.S. Army Enlisted Records and Evaluation Center (USAERC) Form 35 (Deserter Check List), dated 29 March 1976 * DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 29 March 1976 2. The applicant also requests: a. notification of the Federal Bureau of Investigation (FBI); the New Castle, Pennsylvania, Police Department; the Lawrence County, Pennsylvania, Sheriff's Office; and the Lawrence County, Pennsylvania, Bureau of Records that the AWOL/deserter charges were an administrative error and should be expunged from their records; and b. correction of his OMPF to add his Honor Graduate letter, dated 17 September 1968; diploma for the Infantry Noncommissioned Officer Candidate Course, dated 17 September 1968; and promotion orders, dated 17 September 1968. 3. The applicant states he was honorably discharged from the Army on 15 December 1969. 4. The applicant provides: * self-authored letter, dated 25 November 2015 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DA Form 1811 (Physical and Mental Status on Release from Active Service) * Certificate of Appreciation * Headquarters, 1st Air Cavalry Division, Special Orders Number 310, dated 6 November 1969 * DD Form 173, dated 20 November 1975 * Optional Form 41, dated 20 November 1975 * DA Form 3835, dated 13 January 1976 * USAERC Form 35, dated 29 March 1976 * DA Form 3836, dated 29 March 1976 * Headquarters, U.S. Army Infantry School, Office of the Assistant Commandant, memorandum, dated 17 September 1968, subject: Honor Graduate * Infantry Noncommissioned Officer Candidate Course Diploma, dated 17 September 1968 * Headquarters, The Candidate Brigade (Provisional), U.S. Army Infantry School, Special Orders Number 94, dated 17 September 1968 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 was inducted into the Army of the United States on 23 January 1968. He served in Vietnam from December 1968 to December 1969. 3. Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 13634, dated 1 November 1969, awarded him the Bronze Star Medal for meritorious service for the period December 1968 to December 1969 in Vietnam. 4. Headquarters, 1st Air Cavalry Division, Special Orders Number 310, dated 6 November 1969, show: * he was reassigned from Vietnam to Oakland, California, for separation processing * reason – release from active duty * date eligible for return from overseas – 5 December 1969 * report date to continental United States – 17 December 1969 5. He provided: a. a DA Form 1811, dated 15 December 1969, showing he was physically qualified for separation or reenlistment; and b. a Department of the Army Certificate of Appreciation, dated 15 December 1969, in recognition of his faithful performance of duty. 6. His DD Form 214, authenticated with his signature, shows he was honorably released from active duty on 15 December 1969. 7. His OMPF contains the following records: a. A Multiple Purpose Correspondence Form from the National Personnel Records Center, dated 23 December 1975, states a search of morning reports for Vietnam returnees for the period 1 January 1970 to 31 March 1970 failed to locate assignment, AWOL, or dropped from unit rolls records for the applicant. b. A DA Form 3836, dated 29 March 1976, shows the applicant was dropped from the unit rolls on 17 December 1969 and returned on 15 December 1969. The form is stamped: "TERMINATE APPREHENSION EFFORTS. Individual has returned to military control." c. A DA Form 3836, dated 2 April 1976, shows the applicant was dropped from the unit rolls on 17 December 1969. Comments in the remarks block state: "[Applicant] informed this office that he had been Discharged from the U.S. Army. The attached paperwork is forwarded to your office for further disposition relative to Discharge. Efforts to locate information relative to [Applicant] with National records Center, St Louis, Missouri met with negative results." The form is stamped: "TERMINATE APPREHENSION EFFORTS. Individual has returned to military control." 8. His OMPF also contains numerous documents indicating he was AWOL or in a deserter status, including a DD Form 173, dated 20 November 1975; Optional Form 41 (states he was AWOL on 1 September 1969), dated 20 November 1975; DA Form 3835 (states his AWOL began on 17 December 1969), dated 13 January 1976; USAERC Form 35, dated 29 March 1976; and DA Form 3836, dated 29 March 1976. 9. His OMPF does not contain: * Headquarters, U.S. Army Infantry School, Office of the Assistant Commandant, memorandum, dated 17 September 1968, subject: Honor Graduate * Infantry Noncommissioned Officer Candidate Course Diploma, dated 17 September 1968 * Headquarters, The Candidate Brigade (Provisional), U.S. Army Infantry School, Special Orders Number 94, dated 17 September 1968 10. He provided a self-authored letter, dated 25 November 2015, wherein he stated: a. He requests correction of an egregious injustice that was done to his honor by the Army. In February 1976, he received a telephone call from his brother-in-law advising him the FBI in New Castle, Pennsylvania, was looking for him. He immediately called the FBI and was informed the Army had no record of him returning from Vietnam. He sent a certified copy of his DD Form 214 to the FBI. He assumed the issue was resolved and that any record of him being AWOL would be deleted from his military records. b. He recently requested and received a copy of his OMPF. Judging by the limited documents he received, it is apparent that most of his records, including his discharge records, were lost. After reviewing the records, he was shocked to discover five documents (DD Form 173, Optional Form 41, DA Form 3835, USAERC Form 35, and DA Form 3836) indicating he was AWOL and a deserter. Apparently after being notified by the FBI that he was honorably discharged, the Army included his DD Form 214 in his official records. However, the Army never deleted the AWOL/deserter documents from his OMPF. c. He was an excellent Soldier and does not deserve to have his records stained because of an administrative error. He was an Honor Graduate of the Noncommissioned Officer Candidate School and promoted to staff sergeant after being in the Army for only 9 months. He served in Vietnam from 15 December 1968 to 15 December 1969. He was honorably discharged from the military on 15 December 1969. He served a good portion of his tour of duty in Vietnam as an infantry platoon leader in charge of the 2d Platoon, Company C, 1st and 8th Cavalries, 1st Cavalry Division, which was well above his rank. d. Among other awards, he received the Bronze Star Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Combat Infantryman Badge, and Air Medal. e. He has paid dearly for his service to his country. He was diagnosed with stage II lung cancer due to exposure to Agent Orange and was diagnosed with post-traumatic stress disorder as a result of his combat experiences in Vietnam. f. After all this, he now learns there are documents in his file that indicate he was once charged as being AWOL and a deserter. He served his country with honor and distinction and deserves to have his records reflect this. REFERENCES: Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. DISCUSSION: 1. The evidence of record shows: * the applicant was awarded the Bronze Star Medal for meritorious service for the period December 1968 to December 1969 in Vietnam * his reassignment orders, dated 6 November 1969, show he was reassigned from Vietnam to Oakland, California, for separation processing * his DA Form 1811, dated 15 December 1969, shows he was physically qualified for separation or reenlistment * his DD Form 214, authenticated with his signature, shows he was honorably released from active duty on 15 December 1969 2. His OMPF contains documents indicating he was AWOL or in a deserter status on different dates (1 September 1969 and 17 December 1969). 3. A DA Form 3836, dated 29 March 1976, shows he was dropped from the unit rolls on 17 December 1969 and returned on 15 December 1969. 4. Records from the National Personnel Records Center failed to show he was AWOL or in a deserter status during the period 1 January 1970 to 31 March 1970. 5. He requested removal of all documentation indicating he was AWOL or in a deserter status on 1 September 1969 or after his release from active duty on 15 December 1969. 6. The evidence of record indicates the documentation stating he was AWOL or in a deserter status on 1 September 1969 or after his release from active duty on 15 December 1969 is erroneous. 7. The applicant's Honor Graduate letter, dated 17 September 1968; Infantry Noncommissioned Officer Candidate Course Diploma, dated 17 September 1968; and promotion orders, dated 17 September 1968, are not filed in his OMPF. 8. His request for notification of the FBI; the New Castle, PA, Police Department; the Lawrence County, PA, Sheriff's Office; and the Lawrence County, PA, Bureau of Records, that the AWOL/deserter charges were an administrative error and should be expunged from their records was noted. However, this action is not an Army records correction and does not fall within the purview of this Board. The applicant is advised to provide copies of these proceedings to the respective agencies. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001257 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001257 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2