RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060013629 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Ms. Linda M. Barker

Member

Mr. Michael J. Flynn

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, on two separate applications, that his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), item 30 (Remarks) be corrected to show he was charged only once for excess leave.  He also requests that Item 30 be corrected to show the entry "Korea-Yes" instead of the entry "Korea-No."

2.  The applicant states, in effect, that a clerical error occurred in the preparation of item 30, of his DD Form 214.  He was charged excess leave twice for the same days.  He also states that item 25 (Education and Training Completed), shows the entry "Korea (NCO Academy)."  He wishes to be provided a copy of the certificate for completion of the course.

3.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 13 April 1973, the date of his release from active duty.  The applications submitted in this case are dated 29 July 2006 and 20 September 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 military record shows he entered active duty on 14 April 1970. The applicant successfully completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Gordon, Georgia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 72B, Communications Center Specialist.

4.  He was promoted to specialist five (SP5/E-5) effective 1 December 1972.  He continued to serve until he was honorably released from active duty on 13 April 1973.  He was transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement).
5.  Item 25, of his DD Form 214, shows the entry "Korea (NCO Academy)."  Item 30 (Remarks), shows the entries, "Vietnam-No, Indochina-No, and Korea-No," and the entries "Excess leave of 21 days from 11-21 Jan 72 (11 days), 15-17 Jan 72 (3 days), 30 May -5 Jun 72 (7 days)."

6.  Item 27 (Military Education), of his DA Form 20 (Enlisted Qualification Record), shows he attended the NCO Academy in Korea for 3 weeks in 1971.  

7.  Item 31 (Foreign Service), of the applicant’s DA Form 20, shows that he served in Okinawa from 18 November 1970 to 17 May 1972.

8.  Item 38 (Record of Assignments), of his DA Form 20, shows he served as a communications center specialist and a data communications terminal specialist with Company B, United States Army Security Agency Field Station, in Okinawa, in USARPAC (United State Army Pacific).

9.  The applicant's financial records, such as leave and earning statements (LES) for the months of January, May, and June 1972, are unavailable for review.

10.  According to Table 1-2, Army Regulation 614-30 (Assignments, Details, and Transfer-Overseas Service), an individual must serve a period of 45 days or more of uninterrupted service outside CONUS (Continental United States) or area of residence in authorized military status (PCS or TDY [Permanent Change of Station or Temporary Duty]) to be constituted as foreign service.    

11.  Army Regulation 635-5 establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that item 30 (Remarks) is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries that are too long for other blocks.  Department of the Army issued guidance to report service in Vietnam, Indochina, and Korea in item 30 (Remarks) of the DD Form 214.

12.  Army Regulation 15-185 provides the policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR begins it consideration of each case with 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 alleges that he was charged twice for the same dates listed in item 30, of his DD Form 214.  There is no evidence, and the applicant has provided none, to show that he was charged twice for the excess leave shown in item 30.  

2.  The period of his excess leave from 15-17Janaury 1972 is embedded in the period of his excess leave from 11-21 January 1972.  His financial records are unavailable for review, such as LESs for the months of January, May, and June 1972, it is not possible to make any further determination based on the available evidence.  

3.  Because the ABCMR considers individual applications and decides cases on the evidence, and because it is not an investigative body, and because the ABCMR begins its consideration of each case with the presumption of administrative regularity, and the burden of proof rests with the applicant, he is not entitled to a change of the excess leave information recorded in item 30, of his DD Form 214.

4.  The applicant alleges that the entry in item 30, of his DD Form 214, should show "Korea –Yes."  The evidence shows that he attended and completed the NCO Academy in Korea, for 3 weeks, on a temporary duty basis in 1971.  The evidence shows he was assigned in Okinawa from 18 November 1970 to 17 May 1972, 18 months.  His 3 weeks of service in Korea, for attendance at the NCO Academy, does not support a change in item 30, of his DD Form 214, to change the entry "Korea-No" to "Korea-Yes."  Therefore, he is not entitled to correction of item 30, of his DD Form 214, to show the entry "Korea-Yes" instead of the entry "Korea-No."  This entry is correct as currently constituted.

5.  A copy of the certificate for completion of the NCO Academy course was mailed to the applicant.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 April 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 12 April 1976.  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

___e____  __MJF__  ___LB___  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.




______Lester Echols__________
          CHAIRPERSON




INDEX

CASE ID
AR20060013629
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070329
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19730413
DISCHARGE AUTHORITY
AR 635-200 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108
2.

3.

4.

5.

6.