AR20150009481

BOARD DATE: 2 June 2016

DOCKET NUMBER: AR20150009481

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: 2 June 2016

DOCKET NUMBER: AR20150009481

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: 2 June 2016

DOCKET NUMBER: AR20150009481

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 undesirable discharge to general under honorable conditions.

2. The applicant states he was under military command and control and being paid until his discharge in July 1961.

3. The applicant provides:

* two pages from his 1958 journal
* DDForm258A (Undesirable Discharge Certificate)
* letter from the Department of Veterans Affairs (VA), dated 31October 1994
* VAForm26-8320 (Certificate of Eligibility for Loan Guaranty Benefits)

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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 enlisted in the Regular Army on 1September 1955 for a period of 3years. He completed his training and was awarded military occupational specialty (MOS) 140.00 (field artillery basic crewman), and later MOS310.00 (field communications crewman) and MOS410.00 (ammunitions helper).

3. On 19January 1957, he was convicted by a summary court-martial of being absent without leave (AWOL) from 30December 1956 to 3January 1957. He was sentenced to hard labor without confinement for 30days and forfeiture of $50.00. On 24January 1957, the convening authority approved the sentence.

4. The available evidence shows he absented himself without leave from his unit on 25May 1958 and did not return to military control.

5. He provided two pages from his 1958 journal, which states, in part, that “2suits” paid him 7months back pay in cash while he was AWOL.

6. The applicant’s available records contain an undated letter from his commanding officer to his mother which states:

* the applicant has been AWOL since 25May 1958
* he will lose all pay and allowances during this period of unauthorized absence
* it is in his best interest to return to military control without delay

7. His records contain a letter from a Legal Attach, U.S.Embassy, Ottawa, Ontario, Canada, dated 10February 1960, which states:

a. The applicant was stopped by a police officer in Missouri while home on military leave on 15May 1958 after a complaint had been received that he and three companions had threatened an individual with a .45caliber pistol. The pistol was not found and the applicant denied making any threat with a gun, but a search of his car revealed he had 1,200rounds of .45caliber ammunition in his possession. The ammunition was U.S.Government property obtained from FortCampbell where the applicant was assigned. No Federal prosecution by U.S.civil authorities was pending for this violation.

b. The applicant was released from civil custody and failed to return to military control at the completion of his leave on 25May 1958. He was declared a deserter and Federal Bureau of Investigation assistance to locate and apprehend him was requested.

c. The Royal Canadian Mounted Police located the applicant in British Columbia. He resided at a bush camp.

d. When interviewed, the applicant admitted to deserting from the Army, but would not state whether he had any intention of returning. He did state he wanted to remain in Canada until he could apply for Canadian citizenship. He indicated he might at some future date return to the UnitedStates after obtaining Canadian citizenship.

8. The available records also contain a letter from The Adjutant General, dated 28July 1961, to the applicant in British Columbia, which states:

a. In accordance with current criteria, action was taken on 26July 1961 to separate him from his enlistment of 1September 1955.

b. He was furnished a DDForm258A and DDForm214 (Armed Forces of the UnitedStates Report of Transfer or Discharge).

9. His DDForm214 shows he was discharged under other than honorable conditions on 26July 1961 under the provisions of Army Regulation635-206 (Personnel Separations Discharge Misconduct) due to desertion. He completed 2years, 8months, and 20days of total active service with 4days of lost time due to AWOL and 1,156days of lost time due to desertion.

10. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board’s 15-year statute of limitations.

REFERENCES:

1. Army Regulation635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). It provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action was taken against them which was tantamount to a finding of guilty for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1year. An undesirable discharge was normally considered appropriate.

2. Army Regulation635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel. Paragraph3-7b 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.

3. Table1-12 (Unauthorized Absence and Other Lost Time Effect on Pay and Allowances) of Department of Defense Financial Management Regulation, volume7A (Military Pay Policy Active Duty and Reserve Pay) states when a member is absent from duty as a deserter and is found guilty of deserting by court-martial or is administratively discharged for desertion or dies prior to return to military control or while awaiting trial by court-martial for the charge of desertion, then the member forfeits all pay and allowances, including that due on the first day of desertion.

DISCUSSION:

1. The evidence of record does not support the applicant’s contention that he was under military command and control and paid until his discharge in July 1961. The evidence of record shows he absented himself from his unit on 25May 1958, he deserted to Canada, and he did not return to military control. He was discharged on 26July 1961 in absentia and issued an Undesirable Discharge Certificate. The governing regulation states a member forfeits all pay and allowances when he or she is administratively discharged for desertion.

2. His record of service included one summary court-martial conviction and 1,160days of lost time due to AWOL and desertion. As a result, his record of service was not satisfactory.

3. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009481

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009481

4

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2