IN THE CASE OF:
BOARD DATE: 17 June 2008
DOCKET NUMBER: AR20080008167
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 correction of his Armed Forces of the United States Report of Transfer or Discharge (D Form 214) to delete 3 days of excess leave and to reimburse him for any pay that may have been withheld.
2. The applicant states that he was home on [ordinary] leave at the time. He reported to all of his duty stations by the required reporting date.
3. The applicant provides a copy of his DD Form 214.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 9 December 1968, the applicant was inducted into the Army of the United States for 2 years. He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).
3. On 20 May 1969, the applicant was assigned for duty as a rifleman with the 1st Battalion, 22nd Infantry Regiment, 4th Infantry Division, in the Republic of Vietnam.
4. On 3 June 1970, the applicant was returned to the United States for duty as a team leader at Fort Carson, Colorado.
5. On 8 December 1970, the applicant was released from active duty. He had attained the rank of sergeant, pay grade E-5 and had completed 2 years of creditable active duty.
6. Item 30 (Remarks) of the applicants DD Form 214 shows that he was in an excess leave status for a 3-day period from 13 to 15 May 1970. The applicants pay records are not available for review.
7. Army Regulation 630-5 (Leaves and Passes), in effect at the time, prescribed the policies and mandated operating tasks for the leave and pass function of the Military Personnel System. It provided, in pertinent part, that Soldiers on active duty earn 30 days of leave per fiscal year. When a Soldier has expended more leave than he would be able to accrue during his period of service, then he was in an excess leave status resulting in a minus leave balance at the time of release from active duty. Soldiers do not earn pay and allowances during periods of excess leave.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that the applicant served on active duty for a period of 2 years, and would have earned a total of 60 days leave. A 3-day period of excess leave indicates that he had used a total of 63 days leave during his active duty service. However, the applicants leave and earnings record is not available for review. Therefore, a determination cannot be made regarding the excess leave entry on his DD Form 214.
2. In the absence of evidence to the contrary, it is presumed that the excess leave entry is correct.
3. In view of the above, the applicants request to remove the excess leave entry from his DD Form 214 should be denied.
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
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) AR20070016793
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ABCMR Record of Proceedings (cont) AR20080008167
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