AR20150009467

BOARD DATE: 12 April 2016

DOCKET NUMBER: AR20150009467

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x_____ ___x_____ __x___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

BOARD DATE: 12 April 2016

DOCKET NUMBER: AR20150009467

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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.

BOARD DATE: 12 April 2016

DOCKET NUMBER: AR20150009467

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 an upgrade of his under other than honorable conditions (UOTHC) discharge.

2. The applicant states:

a. While on active duty and serving at Fort Hood, TX, his mother suffered a medical emergency which required heart surgery. His mother and family requested his presence at home. He requested leave and consulted with his Army supervisors and a chaplain. The Red Cross intervened and purchased his bus ticket. He returned home to care for his mother. The reason he went absent without leave (AWOL) was not correctly documented in his records which led to life being a constant struggle for his family and him. He is currently not eligible for benefits from the Department of Veterans Affairs (VA).

b. He enlisted for 3years and he had close to 3months remaining on his enlistment when a crisis occurred in his family. He requested help from his platoon sergeant and it was denied. He further sought help from the chaplain who spoke up for him. He was the oldest male out of seven siblings and the only source of income. Later his mother had surgery, required time to recover, and continued to need him at home to assist with his siblings. Again, the chaplain got involved and requested he be allowed to resign from his duties since he was needed at home.

c. He believes that his actions were necessary at the time and that he did everything possible to work with those who were in command. So many years have passed. He thought there was nothing he could do until his son, who served as a Marine and served two tours in Iraq, gave him information for requesting a discharge upgrade. His life has dramatically changed from his time in the service and he has worked extremely hard to provide for his family. He feels what happened to him so many years ago was unjust. He and his family deserve the VA benefits of which he has been deprived because of the lack of correct documentation.

3. The applicant provides copies of a training certificate, 1988 DDForm214 (Certificate of Release or Discharge from Active Duty), 1991 DDForm215 (Correction to DDForm214), and six character reference letters.

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 the cases 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.

2. The applicant enlisted in the Regular Army (RA) on 4November 1976 and he held military occupational specialty 76Y (supply clerk).

3. He was reported AWOL on 18December 1978 and he was returned to military control on 8January 1979.

4. His military service records contain:

* DA Form 4187 (Personnel Action), dated 1March 1979, showing he didn’t show up for movement on 20January 1979 and was therefore dropped from the rolls (DFR) of his unit on the same day
* DD Form 458 (Charge Sheet), dated 1 March 1979, completed by the Commander, Combat Service Support Company, 1stCavalry Division, FortHood, TX, showing he was charged with one specification of being AWOL from 20January 1979 through an unspecified date

5. He was apprehended by civil authorities and he was returned to military control on 16March 1979.

6. A DA Form 3584-R (Disposition of DFR to Personnel Financial Record (PFR) and/or Request for DRF PFR Upon Return to Military Control), dated 18September 1979, shows he was reported AWOL on 5April 1979 and never returned.

7. A Discharge in Absentia memorandum, dated 28March 1984, sent via certified mail and of which he acknowledged receipt on 2April 1984, shows he was advised that a review of his military personnel records failed to produce a record of his discharge from the service. Available documentation indicated that he was in a status of desertion and was eligible for a discharge in absentia. He was also advised that he could be discharged UOTHC and the results of the issuance of such a discharge, that he could submit a statement in his own behalf, and the instructions if he desired to return to military control. He was given 45days to respond to the letter or action would be taken to effect his discharge.

8. In an undated letter, the applicant stated while assigned to FortHood in March1978 he incurred several family problems that required his presence at home. His problem was so intense that he had to request a discharge, which he received. During a hurricane all of his personal belongings were destroyed, including all of his military correspondence. He wanted to reenter the military to complete his 6-year obligation. He had served 21/2years; therefore, 31/2years remained to complete his obligation. With certain problems continuing to hang over his head it was necessary that he serve as close to home as possible, perhaps in the Texas Army National Guard. He requested the proper agency be consulted in the matter for his continued membership in the armed forces.

9. A Discharge in Absentia memorandum, dated 19June 1984, shows he was advised, in response to his letter, a thorough search of all records available failed to produce any evidence of his discharge from the Army. In order to resolve his military status he could report to the nearest military installation. If he didn’t respond in 45days, action would be taken to effect his discharge.

10. A Discharge in Absentia memorandum, dated 23March 1988, shows he was advised that a review of his military personnel records failed to produce a record of his discharge from the service. Available documentation indicated that he was in a status of desertion and was eligible for a discharge in absentia. The memorandum also advised him that he could be discharged UOTHC and the results of the issuance of such a discharge, that he could submit a statement in his own behalf, and instructions if he desired to return to military control.

11. A DA Form 2406 (Disposition Form), dated 13June 1988, showing his discharge in absentia had been prepared with an effective date of 13June 1988.

12. A Discharge in Absentia memorandum, dated 13June 1988, shows he was notified of his discharge from the Army with an UOTHC discharge. The memorandum also advised that no documents were found to substantiate the hardship discharge. The statement he submitted did not contain sufficient evidence to warrant the issuance of a different category of discharge. Action had been taken to execute his discharge in absentia effective 13June 1988.

13. Orders Number 50-2, dated 13June 1988, discharged him from the RA effective the same day. The orders show he was not entitled to pay and allowances from 18December 1978 through 8January 1979, 20January through 15March 1979, and 5April 1979 through 13June 1988.

14. He was discharged on 13June 1988, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter14, by reason of misconduct serious offense desertion. He was credited with completing 2years, 2months, and 14days of net active service this period with 3,431days of time lost. His service was characterized as UOTHC.

15. On 29 July 1991, a DDForm215 was issued listing his three periods of AWOL.

16. He provided six character reference letters in which the individuals attested to the applicant being an excellent and responsible Soldier; a good employee; and a good, responsible God-fearing person.

17. There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitation for an upgrade of his discharge.

REFERENCES:

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

a. Chapter 14 prescribed procedures for separating members for misconduct. Specific categories included misconduct, commission of a serious offense. 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 UOTHC was normally appropriate for a Soldier discharged under that chapter.

b. Paragraph 3-7a provided that an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the members service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

c. Paragraph 3-7b provided that a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION:

1. The applicant was reported AWOL for a third time on 5April1979. He never returned to military control. It appears his unit failed to process a DFR packet at the time. His deserter status was first confirmed on 28 March 1984. Subsequently, military authorities notified him of his eligibility for a discharge in absentia and instructions. He responded that he had been discharged by reason of hardship.

2. He was further notified that no documents existed to substantiate the hardship discharge and action had been taken to execute his discharge in absentia. He was discharged accordingly on 13June 1988, by reason of misconduct commission of a serious offense desertion.

3. He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would support an upgrade of his discharge. At the time of his 1984 notification, he had been in a deserter status for more than 4years. He remained in a deserter status for an additional 4plus years.

4. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. The characterization of his discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time.

6. The ABCMR does not correct records solely for the purpose of establishing entitlement to any benefits administered by the VA. Each case is considered on its merits.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009467

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009467

6

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2