RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   20 March 2007
	DOCKET NUMBER:  AR20060010259 


	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.



	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 his military records be corrected to remove 20 days of excess leave. 

2.  The applicant essentially states that he was in a hospital at Fort Sill, Oklahoma in March 1966, and not on excess leave. 

3.  The applicant provides the following in support of this application:

a.  a letter, dated 7 July 2006, from the Office of the Deputy Commander for Administration, Headquarters, United States Army Medical Department Activity, Fort Sill, Oklahoma; and

b.  a letter, dated 13 July 2006, from a Member of Congress from the
12th District of Texas.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
9 December 1966, the date of his release from active duty.  Although the application submitted in this case is dated 19 April 2006, it was not received until 21 July 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 provided a letter, dated 7 July 2006, from the Office of the Deputy Commander for Administration, Headquarters, United States Army Medical Department Activity, Fort Sill, Oklahoma.  The letter essentially stated that the applicant was admitted to Reynolds Army Community Hospital, Fort Sill, Oklahoma on 21 March 1966.  However, this letter also stated, in pertinent part, that there was no documentation as to the date and time of his discharge from this facility.

4.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was wounded in action on 16 March 1966 while serving in the Republic of Vietnam.  Item 38 (Record of Assignments) of this same document shows that he was reassigned to Reynolds Army Community Hospital, Fort Sill, Oklahoma on 16 March 1966.  

5.  Headquarters, United States Army Artillery and Missile Center, Fort Sill, Oklahoma Special Orders Number 146, dated 22 June 1966, reassigned the applicant from the Medical Holding Company, Reynolds Army Community Hospital to the 82nd Administration Company, Fort Bragg, North Carolina with a proceed date of 27 June 1966, and a reporting date of 31 July 1966.

6.  Item 32 (Remarks) of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows, in pertinent part, that he had 20 days of excess leave from 3 July 1966 through 22 July 1966.  Item 34 (Signature of Person Being Transferred for Discharged) of this document shows that the applicant signed his DD Form 214, attesting to the accuracy of the information contained on that form.

7.  There is no other evidence in his military records to explain why he was placed in an excess leave status from 3 July 1966 through 22 July 1966.

8.  Army Regulation 600-8-10 (Leaves and Passes) provides, in pertinent part, that excess leave is a nonchargeable absence granted for emergencies or unusual circumstances or as otherwise specified in this regulation.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to remove 
20 days of excess leave. 

2.  The documents provided by the applicant were carefully considered.  However, the applicant signed his DD Form 214, attesting to the accuracy of the information recorded on this form, which shows that he had 20 days of excess leave from 3 July 1966 to 22 July 1966.  No correlation could be made between the excess leave shown on his DD Form 214 and the letter from the Office of the Deputy Commander for Administration, Headquarters, United States Army Medical Department Activity, Fort Sill, Oklahoma, which stated that the applicant was admitted to Reynolds Army 

Community Hospital, Fort Sill, Oklahoma on 21 March 1966.  As a result, the applicant failed to prove that an error occurred by a preponderance of the evidence.  In view of the foregoing, there is insufficient basis for granting relief to the applicant in this case.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 December 1966; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 December 1969.  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

__KN____  ___DH__  __LD ___  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.




____ Kathleen Newman_______
          CHAIRPERSON




INDEX

CASE ID
AR20060010259
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
110.0000.0000
2.

3.

4.

5.

6.