RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	3 April 2008  
	DOCKET NUMBER:  AR20080000305 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jeffrey Redmann 

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, that item 30 (Remarks), of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), be corrected. 

2.  The applicant states, in effect, that he served in Vietnam from 3 December 1968 to 3 December 1969 and the Article 15, under the Uniform Code of Military Justice (UCMJ), from Fort Sam Houston (FSH), Texas was impossible.  He has attached orders that show he was on 30 days leave upon his return from Vietnam therefore, he did report to White Sands Missile Range WSMR (WSMR) on 6 January 1970.  He requests correction of his DD Form 214 and removal of the said offense, which effects his time in service, and his time in Vietnam, as this time is very important. 

3.  The applicant provides a copy of his DD Form 214, copy of his DD Form 215 (Correction to DD Form 214), dated 30 January 1979, and copies of several orders from his unit records in support of his request.

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 record shows he was inducted on 4 June 1968.  He was trained as a lineman, in military occupational specialty (MOS), 36C.  He served in Vietnam from 4 December 1968 to 3 December 1969.

3. The applicant's records contain a copy of a DA Form 1 (Morning Report) which shows that while he was in Vietnam, he returned to the United States and was attached to FSH for consideration of a hardship discharge. 


4.  On 5 August 1969, while attached to FSH, the applicant was punished under Article 15, UCMJ, for being absent without leave (AWOL) from 31 July 1969 through 4 August 1969.  His punishment consisted of a forfeiture of pay for 
1 month.

5.  The applicant was released from attachment effective 13 August 1969.  His application for a hardship discharge was not favorably considered.  He was provided return transportation to his parent unit, in Vietnam, with a reporting date of 17 August 1969.

6.  The applicant was promoted to specialist five (SP5/E-5) on 14 November 1969.

7.  The applicant provided a copy of Headquarters, 53rd Signal Battalion, Special Orders Number 264, dated 19 November 1969, which show that he was reassigned to USA Garrison, WSMR, New Mexico, with an estimated reporting date of 7 January 1969.  The orders listed his Date Eligible for Return from Oversea Service (DEROS) as 3 December 1969.  He was granted 30 days leave enroute to his new assignment.  These orders were amended to show a reporting date of 7 January 1970.  

8.  The applicant's records contain a copy of a Disposition Form (DF), Subject:  In Processing, which shows that the applicant was assigned to WSMR on 6 January 1970.

9.  The applicant served until he was released from active duty on 3 June 1970.

10.  Item 30, of his DD Form 214, shows the entry "Excess Leave of 15 days from 16-30 Dec 69."

11.  The applicant provided a copy of his DD Form 215 (Correction to DD Form 214), dated 30 January 1979, which shows that item 15 (Reenlistment Code) was corrected to show the entry "RE-3B", item 22a (Net Service This Period), 22a(3), and 22b (Total Active Service) were corrected to show the entry "1 11 25" (1 year, 11 months, and 25 days); item 26a (Non-Pay Periods Time Lost) to show the entry "5 days"; and item 30 (Remarks), of his DD Form 214, to show the entry "5 days time lost under 10 USC (United States Code) 972 from 31 July thru 4 Aug 1969."  




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant served in Vietnam from 4 December 1968 to 3 December 1969.  While he served in Vietnam, he returned to the United States and was attached to FSH for consideration of a hardship discharge.  He went AWOL from FSH on 31 July 1969 and remained AWOL until 5 August 1969, which consisted of 5 days.  These 5 days of AWOL were subtracted from his net active service.  On 30 January 1979, a DD Form 215 was issued to show the corrected entries on the applicant’s DD Form 214.

2.  The applicant's application for hardship discharge was not favorably considered and he was released from attachment effective 13 August 1969.  He was provided return transportation to his parent unit, in Vietnam, with a reporting date of 17 August 1969.

3.  The evidence shows the applicant was granted 30 days leave upon reassignment from Vietnam to WSMR and he reported to his new assignment on 6 January 1970.  

4.  The applicant alleges, in effect, that the said offenses, which affected his time in service, should be removed; however, the said offense, 5 days AWOL, did not affect his time in Vietnam.

5.  The applicant's issue, in effect, pertaining to item 30, of his DD Form 214, which shows excess leave of 15 days from 15 to 30 December 1969, is acknowledged.  However, excess leave is leave without pay.  His pay records or leave and earning statements (LESs) are not available to show how many days of ordinary leave he had accrued prior to being granted 30 days of leave upon reassignment from Vietnam to WSMR.  

6.  It is apparent that the applicant had less than 30 days of accrued leave prior to his departure from Vietnam and was granted an additional 15 days of leave, which were considered excess leave, and without pay.  He is therefore not entitled to removal of the entry "Excess Leave of 15 days from 16-30 Dec 69" as shown in item 30 (Remarks), of his DD Form 214.

7.  In the absence of evidence to the contrary, Government regularity is presumed regarding his excess leave.  The applicant has provided no evidence, and there is none, to show that his excess leave was in error or unjust while serving on active duty.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__cd____  __LD____  ___JF_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____Carmen Duncan____
          CHAIRPERSON




INDEX

CASE ID
AR20080000305
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2008
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19700603
DISCHARGE AUTHORITY
AR 635-200, chapter 2
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.


The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by (list corrections in this paragraph, this paragraph with lettered subparagraphs or in a series of numbered paragraphs).

USE THE FOLLOWING ENTRIES IF SOME RELIEF IS GRANTED AND SOME RELIEF IS DENIED.

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 (list corrections in this paragraph, this paragraph with lettered subparagraphs or in a series of numbered paragraphs).

X.  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 (list what was denied).