RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 20 November 2007 
	DOCKET NUMBER:  AR20070003357 


	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.


x

	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 the time lost recorded on his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, be corrected.

2.  The applicant states, in effect, that the Army shows him as having 59 days of time lost for the period from 23 February through 22 April 1974.  He states he was not AWOL (absent without leave) until a later date.  His qualifying was in March and the Army has him missing in February.  He summarizes by stating he did go AWOL but not on the dates stated.

3.  In support of his request, the applicant provided a copy of his DD Form 214, with an effective date of his discharge of 6 May 1974.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army, for 3 years, on 28 November 1972, in the rank and pay grade, Private, E-1.  He completed basic combat training at Fort Knox, Kentucky, on 16 February 1973.  The applicant was honorably discharged on 6 March 1973, under the provisions of AR 635-200, for an unfulfilled enlistment contract.  At the time of his discharge, he had completed 3 months and 9 days net active service.

3. The applicant's records show he enlisted, in the Regular Army, for 3 years, in the rank and pay grade, Private, E-1, on 18 December 1973.  He completed advanced individual training at Fort Polk, Louisiana, and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

4.  On 23 February 1974, the applicant was reported AWOL.  At the time of the applicant's departure on AWOL, he was assigned to Company A, 2nd Battalion, 3rd Training Brigade, Fort Polk, Louisiana.

5.  A DA Form 188, Extract Copy of Morning Report, shows he was departed AWOL from Company A, 2nd Battalion, 3rd Training Brigade, at 0001 hours, 23 February 1974.  The same DA Form 188 shows the applicant was dropped from the rolls of his unit on 25 March 1974.

6.  A DA Form 3836, Notice of Return of US Army Member from Unauthorized Absence, dated 30 April 1974, shows the applicant returned from AWOL on 23 April 1974 at Fort Leonard Wood, Missouri.

7.  On 30 April 1974, the applicant received a summary court martial.  He was found guilty of absenting himself without authority for the period from 23 February 1974 to on or about 20 April 1974 [a total of 57 days].  He was sentenced to a forfeiture of $125.00 pay per month for one month, to be reduced to pay grade E-1, and to be restricted to the limits of his unit of assignment for 21 days.  The sentence was approved and ordered executed on the same date.

8.  The applicant was discharged with a general, under honorable conditions, discharge on 6 May 1974, under the provisions of Army Regulation (AR) 635-200, chapter 13, for unsuitability – character and behavior disorders, in the rank and pay grade of Private, E-1.  On 5 November 1987, the authority for the applicant's discharge was corrected to show he was discharged for unsuitability – apathy, defective attitudes and inability to expend effort constructively.

9.  The applicant's DD Form 214, in Item 22a (1) shows on the date he was discharged, he had completed 2 months and 19 days active military service, this enlistment, and 3 months and 9 days prior active service.  Item 22a (3) and Item 22b show the applicant had completed 5 months and 28 days total active service.

10.  Item 26a. (Non-pay Periods Time Lost), of the applicant's DD Form 214, shows the entry, "59 days."  Item 30 (Remarks), shows he was charged with 59 days lost time under Title 10 USC 972 for the period from 23 February through 22 April 1974.

11.  AR 635-5 prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  This regulation provides detailed instructions and source document(s) for completing each item of the DD Form 214.  In item 26a the instructions were to enter the inclusive dates of non-pay periods/time lost during the preceding 2 years.  Item 30 would be used to complete entries too long for their respective blocks and if the individual had lost time prior to normal ETS (expiration of term of service), as indicated in Section 6, DA Form 20, Enlisted Qualification Record, the total number of days lost, with inclusive dates, would be entered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 shows he has 59 days of time lost for the period from 23 February through 22 April 1974.  He states he was not AWOL on these dates but went AWOL later.

2.  The evidence of record shows he departed AWOL from his unit at 0001 hours, 23 February 1974 and was dropped from the rolls of his unit on 25 March 1974.  He remained AWOL until he surrendered himself to military authorities on 23 April 1974.

3.  The applicant was convicted by a summary court martial on 30 April 1974; however, he was only convicted for an absence for the period from 23 February 1974 through 20 April 1974, an absence of only 57 days.

4.  Based on the evidence of record, the applicant is entitled to a correction of his record to show he had only 57 days time lost; and the period of this time lost spanned the period from 23 February 1974 through 20 April 1974.  There is no evidence to support the applicant's contention his absence was at a later period on time.

5.  Based on this correction, the applicant is entitled to credit for the two additional days and to have these days added to the totals shown in Item 22a (1) and 22b.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x ___  __x___  ___x__ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 

	a.  correcting Item 26a, of the applicant's DD Form 214, to show he had only 57 days time lost, as opposed to the 59 days currently recorded; 

	b.  correcting Item 22a (1) to show the applicant had completed 2 months and 21 days active military service, this enlistment, and correcting Item 22b to show he had completed 6 months total active service; and

	c.  correcting the remark in Item 30 to show the entry, "57 days lost under 10 USC 972 from 23 February through 20 April 1974."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the applicant's DD Form 214 to show he was AWOL at a later date than reflected on his DD Form 214.




_____x________
          CHAIRPERSON



INDEX

CASE ID
AR20070003357
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT
REVIEW AUTHORITY

ISSUES         1.
123.0000
2.
123.0100
3.

4.

5.

6.