RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            01 JULY 2004
      DOCKET NUMBER:   AR2003098940


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Ms. Lana McGlynn                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. John Meixell                  |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that a 1978 Department of Defense
Form 215 (Correction to DD Form 214, Report of Separation from Active Duty)
be voided.  He also asks that his lost time in item 21 (time lost) and item
27 (remarks) on his Department of Defense Form 214 (Report of Separation
from Active Duty) be deleted.

2.  The applicant also requests that the handwritten changes in item 4
(Assignment Considerations) on his Department of the Army Form 2-1
(personnel qualification record) be looked at.  He maintains, in effect,
there is no basis for the changes to have been made.

3.  The applicant states that he was never reduced in grade as a result of
a court-martial or UCMJ (Uniform Code of Military Justice) action.  He
notes that he was court-martialed in November 1973 and received two records
of nonjudicial punishment, one in August 1973 and the second in April 1975,
however, in none of the cases was he reduced.

4.  He states that items 21 and 27 on his Department of Defense Form 214
should be deleted because he made up his AWOL (absent without leave) days
by remaining in the military longer.  He also states that there are
inconsistencies in the AWOL dates between what is reflected on his
Department of the Army Form 2-1 and what is reflected on his Department of
Defense Form 214.  He states he does not remember being AWOL in June 1975
and recalls only one AWOL period for which he received the summary court-
martial in November 1973.

5.  The applicant states he never received a copy of the Department of
Defense Form 215 until he requested copies of his records via a Freedom of
Information request in July 2002.  He states it was then that he noticed
the discrepancies in his records.  He suspects his records may have been
confused with another Soldier.

6.  The applicant provides no evidence in support of his request, beyond
his self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 April 1978 when his Department of Defense Form 215 was
prepared.  The application submitted in this case is dated 29 September
2003.



2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant enlisted in
the United States Army Reserve, for a period of 6 years, on 25 August 1972,
under the Delayed Enlistment/Entry Program.  As part of his enlistment
contract, he agreed to enlist in the Regular Army not later than 30 August
1972.  On
30 August 1972 the applicant executed a 3-year enlistment contract and
entered active duty as a Regular Army Soldier.  As a result of his 3-year
enlistment, his separation date was established as 29 August 1975.

4.  Following completion of training, the applicant was assigned to Fort
Hood, Texas and by March 1973 he had been promoted to pay grade E-3.

5.  In August 1973 the applicant was punished under Article 15 of the UCMJ
for disobeying an order and failing to go to his appointed place of duty.
His punishment included extra duty and restriction.

6.  On 6 September 1973 the applicant departed AWOL.  He returned to
military control on 29 September 1973 (a period of 23 days) and was
convicted by a summary court-martial.  His punishment included forfeiture
of pay and restriction. The date the applicant returned to military control
(29 September 1973) would not have been included in calculating the total
number of days of lost time with which the applicant would have been
charged (23 days – 6 September through 28 September, inclusive).

7.  As a result of the applicant’s 23 days of lost time due to AWOL, his
original separation date was adjusted by an additional 23 days and
established as
21 September 1975.  Orders issued on 31 January 1974 confirmed the change
in the applicant’s separation date by changing his BASD (Basic Active
Service Date) and his PEBD (Pay Entry Basic Date) to account for his lost
time.

8.  In March 1974 the applicant was promoted to pay grade E-4.

9.  A Department of the Army Form 1315 (Reenlistment Data Card) reflects an
entry that a bar to reenlistment should be initiated against the applicant
and




contains the handwritten entry that “EM [enlisted member] has had military
Article 15.  Misconduct civil Misconduct military.”  The card reflects a
date of
21 February 1975.  There is, however, no indication that a bar to
reenlistment action was ever initiated.

10.  In April 1975 the applicant was punished again under Article 15 of the
UCMJ for failing to obey an order to get his haircut and for failing to be
at his appointed place of duty on 22 April 1975.  His punishment included
forfeiture and extra duty.

11.  A personnel data sheet, used to record transaction data submitted to
the SIDPERS (Standard Installation/Division Personnel System), notes that
on
11 June 1975 the applicant’s duty status was changed from “present for
duty” to AWOL effective at 0700 hours on 10 June 1975.  A subsequent entry
notes that his duty status was changed from AWOL to present for duty at
1300 hours effective 15 June 1975, a period of 6 days.  A Department of the
Army Form 4187 (Personnel Action), authenticated by the applicant’s acting
company commander, confirms the applicant surrendered to military
authorities at Fort Hood, Texas.

12.  There is no record of any disciplinary action, in the applicant’s
file, associated with his June 1975 period of AWOL.  However, his record
does contain an order, dated 2 September 1975, which reduced the applicant
from pay grade E-4 to E-3 effective 19 July 1975.  The authority for the
reduction is recorded as an Article 15, UCMJ, dated 19 July 1975.
Additionally, the applicant’s record indicates that his scheduled
separation date was adjusted by 6 days, making his separation date 27
September 1975.

13.  In an undated document, the applicant requested that he be released
from active duty on 26 September 1975, vice his scheduled separation date
of
27 September 1975.  The basis for his request is not defined in his request
for an earlier separation date, however, in 1975, 27 September was a
Saturday.

14.  On 14 August 1975, prior to the publication of the orders reducing the
applicant, orders were issued assigning the applicant to the Transfer Point
for separation processing effective 26 September 1975.

15.  On 9 September 1975, just days after the order reducing the applicant
from pay grade E-4 to pay grade E-3 was published, orders were issued
announcing the applicant’s separation from active duty effective 26
September 1975.  The separation order reflects the applicant’s grade as
“SP4.”



16.  On 26 September 1975 the applicant was released from active duty.  The
authority for his separation is listed as “Chap 2, Army Regulation 635-200
SPD LBK.”  Item 21 (time lost) reflects the entry “8 days (10USC)” and
“(See 27).”  Item 27 (Remarks) contains the entry “Item 21:  29 day lost
time under Title 10 USC 972 from 6 Sep 73 thru 28 Sep 73 and from 10 Jun 75
thru 15 Jun 75.”  Those same dates are recorded in item 21 (time lost) on
the applicant’s Department of the Army Form 2-1.  There was no Reenlistment
(RE) Code entered on the applicant’s separation document.

17.  The applicant was credited with 2 years, 11 months, and 28 days of
active Federal service.

18.  Item 4 (Assignment Consideration) on the Department of the Army Form 2-
1 reflects the entry “RE 4 – Ineligible to re-enlist” followed by the entry
“table 2-5 AR 601-210 applies” which has been lined through and the entry
“Chap 2 AR 635-200 SPD LBK Honorable.”  The Chapter 2 entry is essentially
identical to the information contained on the applicant’s separation
document, which cites the authority for his separation.

19.  Table 2-5 of Army Regulation 601-210 applied to enlistment grades for
personnel without prior service.

20.  Department of Defense Military Pay and Allowances Entitlements Manual,
in effect during the applicant’s period of military service, stated that
when a member of the Army leaves the post of duty, place of service or
organization without authority and remains absent more than 24 consecutive
hours, then the day of departure will be counted as the first day of
unauthorized absence.  It also stated that when a member is AWOL and
returns to the place of duty, or organization, or otherwise to the
jurisdiction of the armed forces, the day before the member's return is the
last day of unauthorized absence.  It also stated that 1 day is added when
computing periods to account for inclusive dates (i.e. an individual who is
reported as AWOL on 10 June and returns to military control on 16 June
would be charged with 6 days of AWOL to account for the period 10 June-day
of departure, thru 15 June-day prior to returning to military control).
Additionally, it stated that when an enlisted member loses time in a non-
duty status, that individual’s basic pay entry date would be advanced by a
period equal to the lost time.

21.  Title 10, United States Code, Section 972, which is reflected in item
27 (remarks) on the applicant’s separation document and refers to the lost
time





entry in item 21, states that an enlisted member of an armed forces who is
absent from his organization, station, or duty for more than one day
without proper authority is liable, after his return to full duty, to serve
for a period that, when added to the period that he served before his
absence from duty, amounts to the term for which he was enlisted or
inducted.

22.  In December 1977 the applicant requested a copy of his separation
document from the National Personnel Records Center and an explanation
regarding the RE Code entry.  His inquiry was forwarded to the United
States Army Enlistment Eligibility Agency for information regarding the RE
Code item.  The commander of that agency noted that prior to responding a
determination regarding the applicant’s correct grade at time of separation
needed to be made, in view of the fact that his records contained copies of
an order reducing him in grade effective 19 July 1975.

23.  As a result of the applicant’s inquiry, a Department of Defense Form
215 was issued correcting his grade and date of rank on his 1975 separation
document to show that he was separated in pay grade E-3 vice E-4.
Additionally, he was assigned an RE Code of 3, 3B, and 3C and the entry
“Chapter 4, AR 600-200 and Appendix C, AR 601-210 apply” was added to the
remarks (item 27) section of his separation document.

24.  On 26 April 1978 the applicant was provided a copy of his separation
document, a copy of the reduction orders, and the Department of Defense
Form 215 correcting his separation grade and adding the RE Code information
and additional entry in item 27.  He was informed that he had received a
court-martial conviction, that he had 29 days of lost time, and because he
had been separated in the grade of E-3 with more than 2 years of service,
he was precluded from reenlisting without a waiver.  The correspondence
noted that his RE Codes reflected that disqualification.  The additional
information added to item 27 (remarks) on his separation document referring
to Chapter 4, Army Regulation 600-200 and Appendix C, Army Regulation 601-
210 was the regulatory provision which disqualified him from reenlisting
based on his court-martial, reduction, and lost time.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant may not remember his two periods of AWOL, the
evidence confirms that the applicant was AWOL from 6 through 28 September
1973 and again from 10 through 15 June 1975, for a total of 29 days.





2.  He was apparently reduced in grade as a result of his second period of
AWOL although that information was not translated to his separation
document; possibly because of the short period of time between the date the
reduction orders were published and when the applicant was separated from
active duty.  There is no evidence to suggest that the applicant’s file was
mixed up with another Soldier’s file.

3.  Although the applicant was retained in the Army beyond his originally
scheduled separation date of 29 August 1975 for the purpose of “making up”
his lost time, the fact that he served the additional days did not void the
lost time.  The information contained in item 27 (remarks) regarding the
applicant’s lost time is accurate.

4.  It is unclear why the entry in item 21 (lost time) on his separation
document reflects 8 days and not 29.  However, the Board has consistently
held that it will not make a person worse off then they were prior to
applying to this Board.  Correcting the number of lost days in item 21 from
8 to 29 would, in effect, render the applicant worse off and as such no
correction will be made in that entry.

5.  It is also unclear why information in item 4 on the applicant’s
Department of the Army Form 2-1 was lined through.  It is possible that the
entry was lined through at the time the applicant was separated to show the
regulatory authority basis for his separation or because the previous entry
was incorrect.  However, that form is intended for use by commanders and
personnel officers in managing an individual’s career while they are on
active duty.  It serves no purpose once an individual has been separated
and as such the information contained on the form creates no error or
injustice, which requires action by the Board.  .

6.  There is no evidence, and the applicant has not provided any, that the
information contained on his Department of Defense Form 215 is incorrect.
As such, there is no basis for voiding the document.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 April 1978; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
13 April 1981.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LM __  ___LS___  ___JM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _____Lana McGlynn______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003098940                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040701                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |