RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060010777 


	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. Gerard W. Schwartz

Acting Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, correction to Item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he continued to serve on active duty from 27 June 1998 to 25 July 1999[sic], with entitlement to pay and allowances.

2.  The applicant states, in effect, that he was subject to financial hardship at the time of his under other than honorable conditions discharge.  He also states that as a result of receiving an under other than honorable conditions discharge, which was no fault of his own, and as a result of the Army Discharge Review Board (ADRB) upgrading his discharge to honorable, he believes the additional remark would be equitable and proper.   

3.  The applicant provides a copy of his Military Review Board Case Report and Directive in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-3, on 28 June 1995, for 3 years, with prior Army National Guard service.

2.  On 19 June 1998, the applicant was reported absent without leave (AWOL).  On 20 July 1998, he was dropped from the rolls.  The applicant surrendered to civilian authorities and was returned to military control on 4 January 1999.

3.  On 6 January 1999, court-martial charges were brought against the applicant for being AWOL from 19 June 1998 to 4 January 1999.  

4.  On 7 January 1999, the applicant consulted with legal counsel and requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, Chapter 10.  

5.  On 7 January 1999, the applicant's commander recommended approval of an under other than honorable conditions discharge and processing for immediate separation.

6.  On 8 January 1999, the separation authority approved the discharge with an under other than honorable conditions discharge.  The applicant was to be reduced to the lowest pay grade.

7.  The applicant was discharged, in pay grade E-1, on 25 June 1999, under the provisions of Army Regulation 635-200, Chapter 10.  He was credited with 3 years, 11 months, and 19 days net active service.  He was credited with 8 days of lost time due to AWOL (19 June 1998 to 27 June 1998).  Item 18 of his DD Form 214 shows he was credited with 169 days excess leave, creditable for all purposes except pay and allowances.

8.  On 14 November 2005, the ADRB, after review of the applicant's case, determined that relief was warranted.  The Board voted to grant full relief and upgraded the applicant's discharge to honorable, under Secretarial Authority, restoration to pay grade E-4, and a change to the reentry eligibility code to 1.

9.  The applicant was issued a new DD Form 214, honorably discharging him in pay grade E-4, under the provisions of Army Regulation 635-200, paragraph 5-3 (Secretarial Authority) on 25 June 1999.  He was credited with 3 years, 11 months, and 19 days net active service and 8 days of lost time due to AWOL (19 June 1998 to 27 June 1998).  Item 18 of this DD Form 214, shows he was credited with 169 days excess leave, creditable for all purposes except pay and allowances. 

10.  Army Regulation 600-8-10, prescribes the policies and procedures governing leave and pass programs.  Paragraph 5-19, specifies that excess leave is non-chargeable absence granted for emergency or unusual circumstances.  Excess leave is without pay and allowances.  Paragraph 5-21, specifies that a Soldier awaiting an administrative discharge may be granted voluntary excess leave.  The general court-martial authority or his/her designee, if in the best interest of the Service, will grant the request.  The Soldier's unit will charge ordinary leave until accrued leave is exhausted before placing the Soldier in excess leave status.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to correction to the Item 18 (Remarks) of his DD Form 214 to show he continued to serve on active duty from 27 June 1998 to 25 July 1999[sic], with entitlement to pay and allowances.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contentions have been noted.  It appears that the applicant was placed in an excess leave status based on his voluntary request pending administrative discharge.  In order for the applicant to be placed in an excess 
leave status, it required approval by appropriate authority.  The evidence shows he departed on excess leave on 8 January 1999, the day after his request for a voluntary discharge until 25 June 1999, the date of his discharge.  In accordance with applicable regulations, excess leave is without pay and allowances.  Therefore, he is not entitled to back pay and allowances.

3.  Notwithstanding the ADRB upgrading his discharge to an honorable, he was still in an excess leave status from 8 January 1999 to 25 June 1999.  The upgrade of the applicant's discharge did not change his leave status from excess to ordinary leave nor did it administratively restore him to a present for duty status.  He is therefore not entitled to the relief he now seeks.  The applicant was given credit for his active duty service until the time he was placed on excess leave.

4.  There is no indication that the applicant’s placement on excess leave was unjust or inequitable.  Without evidence to show otherwise, it is concluded that the excess leave applied for and taken by the applicant was properly placed on his DD Form 214.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LMD   __  ___DKH_  __KAN___  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.




      ______
                CHAIRPERSON




INDEX

CASE ID
AR20060010777
SUFFIX

RECON

DATE BOARDED
20070320
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.00
2.

3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060010777


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508