RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20060012322 


	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

Mr. Paul Wright

Analyst

The following members, a quorum, were present:


Ms. Yolanda Maldonado

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Gerald J. Purcell

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 of Item 18 (Record of Service) on his DD Form 214 (Report of Separation From Active Duty).

2.  The applicant states, in effect, he served from 14 December 1967 through 10 July 1974, but only received 6 months and 3 days of creditable active Federal service.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 10 July 1974.  The application submitted in this case is dated 24 August 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's records reveal he initially enlisted the California Army National Guard (CAARNG) on 16 November 1963.  He was subsequently discharged on 16 June 1966 with a General Discharge for continued and willful absence from military duty.

4.  On 14 December 1967, the applicant was inducted into the Army of the United States (AUS) for a period of 2 years.  He completed Basic Combat Training (BCT) and Advanced Individual Training (AIT).  Upon graduation, he was awarded military occupational specialty (MOS) 70A1O, Personnel Specialist.

5.  On 6 May 1968, the applicant departed from his unit in an absent without leave (AWOL) status and was subsequently dropped from the rolls (DFR) of the Army as a deserter on 4 June 1968.  He returned to military control on 17 June 1968; however, the record is silent as to whether he was given any punishment for this infraction.

6.  On 25 March 1969, the applicant was convicted by a Special Court-Martial for being AWOL from 29 October 1968 to 10 January 1969, from 14 January 1969 to 21 February 1969, and for breaking restriction on 14 January 1969.  The sentence included confinement at hard labor for 3 months (suspended for 3 months). 

7.  On 28 May 1969, the applicant was convicted by a Special Court-Martial for being AWOL from 3 May 1969 to 10 May 1969.  The sentence included confinement at hard labor for 3 months (suspended for 3 months), forfeiture of $97.00 per month for 3 months, and reduction to pay grade E-1.

8.  The record indicates the applicant again departed his unit in an AWOL status from 15-16 October 1969, 1-4 November 1969, and 3 November 1969 to 15 April 1974.

9.  On 24 April 1974, the applicant indicated in a statement that he had been informed that he had an approved Hardship Discharge on 15 November 1969.  The hardship still exists.  

10.  The Commander, U.S. Army Personnel Control Facility, Fort Ord, California apparently tried to find evidence that the applicant had an approved Hardship Discharge.  Due to the long length of time, all records maintained at the applicant's previous unit had been destroyed.  The Commander then requested a Determination and Issuance of Constructive Discharge from the Commander, U.S. Total Army Military Personnel Command (MILPERCEN) now known as the U.S. Army Human Resources Command, Alexandria.

11.  On 21 June 1974, MILPERCEN indicated that a Constructive Discharge was not appropriate.  The applicant could be separated because of hardship because the command apparently did not intend to charge the applicant for unauthorized absence.  Further the DD Form 214 should reflect time lost up to ETS (Expiration Term of Service) as time lost under Section 972, Title 10, United States Code, minus the good time earned under military control and on excess leave since his recent return to military control.  Bad time after adjusted ETS is time lost subsequent to ETS.  No waiver of requirement to make good time lost under Section 972, Title 10, United States Code, is required when separation is approved for hardship.

12.  On 10 July 1974, the applicant was discharged under honorable conditions.  He had 6 months and 3 days of creditable active Federal service.  His DD Form 214 shows that he had 1822 days of lost time.

13.  Department of Defense Financial Management Regulation, volume 7A, paragraph 010202C states that enlisted members must make up any lost time.  The regulation states that the time a member is held in a non-duty status while awaiting trial, as well as the time during trial, does not count towards making up lost time and is not creditable.  Table 1-2 of the regulation further states that when a member has unauthorized absence of more than one day (24 consecutive hours)(including detention of Army or Air Force members by or for civil authorities) and is not administratively excused as unavoidable, the period of absence is not creditable.

14.  Army Regulation 630-10 (Absence Without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) provides commanders with the authority to reclassify AWOL to an authorized absence or to excuse unauthorized absence as unavoidable.  The regulation states that the Army and service members are responsible for avoiding unauthorized absences and that if either the Army or the service member fails to take proper action to avoid an absence, then it may not be excused as unavoidable.  As a result, the regulation also requires that before an unauthorized absence may be excused as unavoidable, it must be determined that the absence was not caused by the member’s misconduct, the member acted as prudently and responsibly as could be expected to avoid the absence, and representatives of the Army acted as prudently and responsibly as could be expected to avoid the absence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records indicate he had a lengthy history of unauthorized absences, to include his prior Army National Guard service.  During his AUS service, he had numerous periods of unauthorized absences.  For some of these absences, he received Court-Martial punishment.  For other periods, the record is silent concerning punishment.  

2.  The applicant's last period of unauthorized absence was not excused even though he was allowed to separate with a Hardship Discharge.  Even though he indicated he had a prior approved Hardship Discharge, nothing was found to actually verify this as fact.  He was allowed to receive a Hardship Discharge because conditions existed that permitted such a separation upon his return to military control.

3.  When the applicant's lost time is deducted from his period of service, his DD Form 214 properly reflects his creditable service as 6 months and 3 days.  There is no error or injustice.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 July 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 9 July 1977.  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

__ym____  __lmd___  __gjp___  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.



							Yolanda Maldonado
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20060012322
SUFFIX

RECON

DATE BOARDED
20070515
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
123.0700
2.

3.

4.

5.

6.