RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 MAY 2008
	DOCKET NUMBER:  AR20080002656 


	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.




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, the removal of the time lost entered in 
Item 21 (Time Lost [preceding two years]) of his DD Form 214 (Report of Separation From Active Duty) with an effective date of 28 January 1974.

2.  The applicant states, in effect, his first sergeant had approved a few days extension of his authorized leave on two occasions but had neglected to tell the company clerk.  He further states he has never been absent without leave (AWOL) and his finance records show he was on authorized leave.

3.  The applicant provides no additional evidence or official documentation in support of his application.

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 military service records show that he initially enlisted in the Regular Army on 25 May 1967 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11C (indirect fire crewman).  

3.  On 25 April 1970, the applicant was released from active duty as an overseas returnee.  He had completed 2 years, 11 months, and 1 day of active service that was characterized as honorable.

4.  On 18 January 1971, the applicant reenlisted in the Regular Army for a period of 3 years.

5.  Item 44 (Time Lost Under Section 972, Title 10 United States Code and Subsequent to Normal Date ETS [expiration of term of service]) of the applicant's DA Form 20 (Enlisted Qualification Record) shows two periods of time lost:

	a.  from 2 August 1971 to 3 August 1971, 2 days, reason: AWOL; and

	b.  from 18 July 1972 to 26 July 1972, 9 days, reason: AWOL.  

6.  The applicant's records do not show any disciplinary action taken for the above periods of time lost.

7.  On 28 January 1974, the applicant was discharged due to the expiration of his period of service.  He had completed 3 years of active service that was characterized as honorable.  He had 11 days time lost.

8.  Item 21 of the applicant's DD Form 214 indicates he had 11 days time lost.

9.  Item 27 (Remarks) of the applicant's DD Form 214 contains the entry 
"11 Days lost under USC 972 from 2 Aug 71 - 3 Aug 71 and 18 Jul 72 - 
26 Jul 72."

10.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation provides that the DA Form 20 is the basic source document for entries on DD Form 214 for enlisted personnel.  The regulation provides, in pertinent part, that inclusive dates of non-pay period/time lost during the preceding 2 years are to be entered in Item 21 of the DD Form 214.
 
11.  Section  972, Title 10 United States Code provides, in pertinent part, that enlisted members of an armed force who are absent from their organization, station, or duty for more than one day without proper authority, as determined by competent authority are liable, after their return to full duty, to serve for a period that, when added to the period that they served before their absence from duty, amounts to the term for which they were enlisted or inducted. 

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the 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 contends that his periods of AWOL should be removed from his military records.  He contends his first sergeant had approved a leave extension on both occasions that are listed as periods of time lost on his DD Form 214.  However, he has not provided any official documentation or evidence to support his contentions.

2.  The dates of time lost on the applicant's DD Form 214 were taken from his 
DA Form 20, the source document for entries on the DD Form 214 for enlisted personnel.

3.  There is no evidence of record and the applicant has not submitted any evidence to show that the periods of time lost are in error.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

4.  In the absence of evidence to the contrary, the periods of time lost entered on the applicant's DA Form 20 and his DD Form 214 are presumed to be correct.

5.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_X_______  __X______  _X____  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.





      __________X____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002656



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