RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         15 August 2006
      DOCKET NUMBER:  AR20060000643


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |Member               |

      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, credit for time in service for
terminal leave and award of the Army Good Conduct Medal (AGCM).

2.  The applicant states, in effect, that he was not given credit for time
in service while he was on terminal leave.  He also states that he would
like to know why he was not authorized the AGCM.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 December 1979, the date of his separation from active
duty.  The application submitted in this case is dated 9 December 2005.

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 limitations 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.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 3 January 1977.  He was trained in, awarded, and
served in military occupational specialty (MOS) 94B (Food Service
Specialist), and the highest rank he attained while serving on active duty
was specialist four (SP4).

4.  The applicant's Military Personnel Records Jacket (MPRJ) contains no
orders, or other documents that indicate he was recommended for, or awarded
the AGCM.

5.  The applicant's record does show that on 19 October 1978, he accepted
non-judicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) for failing to go to his appointed
place of duty at the prescribed time, and for disobeying a lawful order.
The resultant punishment for these offenses was a reduction to private/E-2
(suspended) and 4 days of extra duty.
6.  The applicant's Military Personnel Records Jacket (MPRJ) contains a
Request and Authority for Leave (DA Form 31) , dated 23 October 1979, in
which the applicant requested leave in conjunction with his expiration of
his term of service (ETS).  The period requested by the applicant was 3
November 1979 through 17 December 1979.  The applicant's unit commander
recommended the applicant's request for leave in conjunction with his ETS
be approved; however, the DA Form 31 was voided and there is no indication
the applicant took this leave.

7.  On 17 December 1979, Headquarters, United States Army Training Center
and Fort Dix Orders Number 351-300, 324-3 directed the applicant be
relieved from active duty on 17 December 1979.

8.  On 17 December 1979, the applicant was honorably released from active
duty after completing 2 years, 11 months, and 15 days of active military
service.  The separation document (DD Form 214) he was issued shows he held
the rank of SP4.  It also shows that during his active duty tenure, he
earned the Sharpshooter Qualification Badge with Rifle Bar.  The applicant
authenticated this document with his signature on the date of his
separation.

9.  Army Regulation 600-8-10 (Leaves and Passes) contains the Army's leave
and pass policies.  Paragraph 4-21 contains the rules for requesting
transition leave.  It states that transition leave (formerly called
terminal leave) is a chargeable leave granted together with transition from
the Service.  It further states that the unit commander or designee is the
approval authority for transition leave requests.  It also stipulates that
leave will be terminated at 2400 on day of transition (concurrent with
transition).  It may also end upon reporting to the designated U.S. Army
Transition Point not earlier than the reporting date specified on the
Soldier's order, upon return to previous unit of assignment, upon
hospitalization, or upon death.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents that must be prepared for soldiers on retirement, discharge,
release from active duty service, or control of the Active Army.  It also
establishes standardized policy for preparing and distributing the DD Form
214.  Chapter 2 contains instructions on the preparation of the DD Form
214.  It states, in effect, that the date entered in Item 12b (Separation
Date This Period) will be the date the member is released from active duty.


11.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards
policy.  Chapter 4 of the awards regulation prescribes the policy for award
of the
AGCM.  It states, in pertinent part, that the AGCM is awarded to
individuals who distinguish themselves by their conduct, efficiency and
fidelity during a qualifying period of active duty enlisted service.  This
period is 3 years, except in those cases when the period for the first
award ends with the termination of a period of Federal military service, in
which case a period of more than 1 year is a qualifying period.  The
regulation further stipulates that there is no automatic entitlement to the
AGCM.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was not credited with service for
transition leave, and that he is entitled to the AGCM were carefully
considered.  However, there is insufficient evidence to support these
claims.

2.  By regulation, the separation date entered in Item 12b of the DD Form
214 will be the actual date the member is released from active duty.  In
this case, the applicant's record includes orders that directed his release
from active duty on
17 December 1979, and his DD Form 214 confirms he was actually separated on
this date.  Therefore, regardless of whether he took leave in conjunction
with his ETS or not, the separation date on his DD Form 214 accurately
reflects the actual date he was released from active duty, and the total
active duty he is credited with includes the entire period between the date
he entered active duty and his separation date.  As a result, there is an
insufficient evidentiary basis to support granting this portion of the
requested relief.

3.  By regulation, entitlement to the AGCM is no automatic.  The
applicant's record is void of any orders, or other documents that indicate
he was recommended for, or awarded the AGCM by proper authority prior to
his separation from active duty.

4.  In addition, there is a record of NJP on file in the applicant's record
that could have resulted in a unit commander AGCM disqualification.
Further, there is a presumption that the marksmanship badge listed on the
applicant's DD Form 214 was the only award he received while serving on
active duty.  This conclusion is further supported by the fact that the
applicant authenticated the DD Form 214 he was issued with his signature on
the date of his separation.

5.  In effect, the applicant's signature on the DD Form 214 was his
verification the information contained on the separation document, to
include the list of authorized awards, was correct at the time the DD Form
214 was prepared and issued.  As a result, there is an insufficient
evidentiary basis to support award of the AGCM at this late date.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 December 1979.  Therefore, the time
for him to request for correction of any error or injustice expired on 16
December 1982.  He failed to 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___SLP _  __RML __  ___JGH _  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.




                                  _____Shirley L. Powell _____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060000643                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/15                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1979/12/17                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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