IN THE CASE OF:	  

	BOARD DATE:	  4 September 2008

	DOCKET NUMBER:  AR20080007278 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be shown to have completed 3 years of active duty.

2.  The applicant states, in effect, that he was under the impression that he had made up his periods of absence without leave (AWOL).  He is currently considering employment that requires a minimum of 3 years of service.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his DA Form 20 (Enlisted Qualification Record), three sets of orders, pages 1 and 2 of a DD Form 4 (Enlistment Contract - Armed Forces of the United States), and an employment resume in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be granted a correction of his records to show that he served the full 3 years.

2.  Counsel states that the applicant has adequately set forth his contentions and arguments and warrants an equitable review of the issues.

3.  Counsel provides no additional supporting documentation.


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 entered active duty on 28 November 1969 with a 36-month active duty commitment.  He completed training and was awarded the military occupational specialty 63B (Wheeled Vehicle Mechanic).

3.  He served in Vietnam with the 548th Light Maintenance Company from 2 September 1970 through 14 February 1971 and Headquarters and Headquarters Company, 1st Brigade, 5th Infantry Division, from 25 February 1971 through 13 August 1971.

4.  The applicant's DA Form 20 shows that he was AWOL for the following periods:  30 March 1970, 30 June 1972 to 9 July 1972, and 5 August 1972 to 23 August 1972; a total of 30 days.

5.  On 29 December 1972, the applicant's separation orders were amended to show that his expiration term of service (ETS) was changed from 27 December 1972 to 14 December 1972 in accordance with Department of the Army message, DAPE-MPP, DTG 201545Z October 1972.

6.  The applicant was honorably separated on 14 December 1972 under the provisions of Army Regulation 635-200, paragraph 2-2, with a narrative reason of "Expiration of Term of Service."

7.  His DD Form 214 shows he had 2 years, 11 months, and 17 days of creditable service with 30 days of lost time due to AWOL.

8.  Department of the Army message, DAPE-MPP, DTG 201545Z October 1972, authorized local commands to release Soldiers whose ETS dates coincided with the holiday period from active duty up to 30 days prior to their established ETS dates.
9.  Army Regulation 635-5 (Separation Documents) 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.  Under current regulatory guidance, a mandatory entry in block 18 (Remarks) is required which states "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE."  If the narrative reason for separation on the DD Form 214 is "completion of required active service,” the entry "has" is indicated.  This provision was not in effect at the time the applicant's DD Form 214 was issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had three periods of AWOL that totaled 30 days.  His ETS was originally extended from 27 November 1972 to 27 December 1972 to allow him to complete a full 36 months of creditable service.

2.  On 29 November 1972, under the special provisions that allowed for the early release from active duty of Soldiers due to the holidays, his period of obligated service and ETS was shortened to 14 December 1972.  The special early-out provision applied to all Soldiers, not just those who were making up lost time.

3.  There is no provision in law that allows for the conversion of the lost time to be shown as creditable service.  Therefore, no correction of the total period of creditable service is warranted.

4.  However, it appears to have been the intent of the applicant's command to allow him to make up the period of lost time as indicated by the change of his ETS date to 27 December 1972.  This effort was in effect negated by the holiday early-out authorization.  The applicant is shown to have completed his full term of obligated active service and was released at his adjusted ETS.  Therefore, applying current standards, it is appropriate to correct the remarks block of his DD Form 214 to include the statement "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE."

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 including in the remarks block of the DD Form 214 the statement "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE."

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 numerical calculations of his period of creditable service.



___________X_______________
        CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080007278



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ABCMR Record of Proceedings (cont)                                         AR20080007278



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