RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2007
      DOCKET NUMBER:  AR20060006670


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey Redmann               |     |Chairperson          |
|     |Mr. Rodney Barber                 |     |Member               |
|     |Mr. David Tucker                  |     |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 payment for his 15 days of being absent without
leave (AWOL) in 1982 at Fort Polk, Louisiana.

2.  The applicant states he never received payment for his AWOL time.  He
states he was cleared of any wrong doing.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 July 1983.  The application submitted in this case is dated
1 May 2006.

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 enlisted in the Regular Army on 17 July 1980 for a period
of three years.  He completed basic training and advanced individual
training at Fort Benning, Georgia.  He was awarded military occupational
specialty 11B (Infantryman).

4.  The applicant’s service personnel records contain a DA Form 4187
(Personnel Action), dated 5 January 1982, which shows he was apprehended by
civilian authorities on 31 December 1981 and taken to Delaware Correctional
Institution.  There is no evidence of record which indicates the
applicant’s offense.

5.  His service personnel records contain a DA Form 4187, dated 15 January
1982, which shows his duty status changed from confined by civilian
authorities to present for duty on 14 January 1982.

6.  Item 21 (Time Lost (section 972, Title 10, United States Code)) on the
applicant’s DA Form 2-1 (Personnel Qualification Record - Part II) shows he
was imprisoned from 31 December 1981 through 14 January 1982 for 14 days.

7.  He served in Germany from 8 June 1982 through 18 July 1983.

8.  The applicant was honorably released from active duty on 22 July 1983
at his expiration term of service.  He was transferred to the U.S. Army
Reserve Control Group (Reinforcement) on the following date.

9.  Item 29 (Dates of Time Lost During This Period) on his DD Form 214
shows the entry “811231-820114.”

10.  Army Regulation 635-5 (Separation Documents) establishes the
standardized policy for preparing and distributing the DD Form 214.  In
pertinent part, it directs that the dates of time lost during the current
enlistment will be entered on the DD Form 214.  Lost time under Title 10
U.S.C., section 972 is not creditable service for pay, retirement, or
veteran’s benefits; however, the Army preserves a record of time lost to
explain which service between date of entry on active duty and separation
date is creditable service for benefits.

11.  The Department of Defense Financial Management Regulation (DoDFMR),
Volume 7A states that when a member is in an unauthorized absence status,
an administrative determination must be made as to whether the absence was
unavoidable.  If it is not excused as unavoidable, the member forfeits pay
and allowances for the period of absence.

12.  Table 1-12 of DoDFMR, Volume 7A lists the Rules for Unauthorized
Absence and Other Lost Time - Effect on Pay and Allowances.  Rule 1 states
that when a member is absent from duty due to confinement by civil
authorities and the absence is excused as unavoidable then the member is
entitled to otherwise proper credits of pay and allowances.  If the absence
is not excused as unavoidable, then the member is not entitled to pay and
allowances, except for that part of the period that is covered by
authorized leave, liberty, or pass.

13.  Table 1-13 of DoDFMR, Volume 7A lists the Rules for Determining
Whether Absence is Unavoidable.  This table states, in part, that when a
member is absent from duty due to confinement by civil authorities or by
military authorities for civil authorities and is tried and acquitted and
it is clear that arrest and detention were not due to member’s misconduct
then the absence may be excused as unavoidable.  If the member is released
without trial upon agreement to make restitution or reparation for the
alleged offense and the commander determines that absence was not due to
the member’s misconduct then the absence may be excused as unavoidable.
When a member is tried and convicted then the absence may not be excused as
unavoidable.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contended he was AWOL for 15 days and he never received
payment for his AWOL time.  However, the evidence of record shows he was
confined by civilian authorities from 31 December 1981 through 14 January
1982.

2.  The applicant also contended that he was “cleared” of any wrong doing.
However, there is no record of the incidents which led to the applicant’s
arrest and civil confinement or that he was cleared of any offense.

3.  In the absence of evidence that would enable this Board to determine
whether his absence (civil confinement) was excused as unavoidable or
whether his absence was not excused as unavoidable, the applicant’s period
of civil confinement is presumed to be lost time.

4.  Therefore, there is insufficient evidence on which to grant the
applicant payment for his lost time.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 July 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 21 July 1986.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JR______  RB______  DT______  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.




                                  Jeffrey Redmann_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006670                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070118                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |123.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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