IN THE CASE OF:	 

		BOARD DATE:	       23 January 2009

		DOCKET NUMBER:  AR20080017099 


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 his period of lost time due to being absent without leave (AWOL) be removed from his records.  

2.  The applicant states that his records list him as AWOL, but he was not.  He states he was discharged with a medical discharge.  He admits that he did go AWOL one time but he returned and completed 15 weeks of permanent kitchen patrol (KP).  He states, in effect, that he received an Article 15 at Fort Rucker, Alabama and was discharged from that installation.  He was initially apprehended by police in Monroe, Louisiana and he was in jail for one week.  After that, the Military Police from Fort Polk, Louisiana picked him up and put him on a plane back to Fort Rucker.  He continues by stating that he first went home for a week to see his new born son, then he returned to Fort Rucker and turned himself in.  

3.  The applicant provides no additional documents 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 underwent a pre-induction physical examination on 25 June 1969.  In Block 74 (Summary of Defects and Diagnoses) of the applicant's Report of Medical Examination (Standard Form 88), the examining physician indicated the applicant had defective hearing and defective vision.  

3.  The applicant enlisted in the Regular Army on 4 May 1970 for training in military occupational specialty (MOS) 67A (aircraft maintenance).  He completed basic combat training at Fort Lewis, Washington and was reassigned to Fort Rucker for advanced individual training.  

4.  Item 44 (Time Lost Under 972, Title 10, United States Code and Subsequent to Normal Date ETS) on the applicant's DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 20 July 1970 to 27 July 1970 (8 days).  The record of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for this period of AWOL is not available.  

5.  The applicant's service personnel records contain a DA Form 2496 (Disposition Form), dated 27 July 1970, which shows that a request for flagging action was placed on the applicant for being AWOL.  

6.  On 29 July 1970, the applicant was found medically disqualified for the aircraft maintenance course and he was eliminated from the course by reason of uncorrectable vision.  

7.  The applicant was discharged on 23 September 1970 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) by reason of unfulfilled enlistment commitment.  He completed 4 months and
12 days active military service with 8 days of lost time.

8.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the entry “20 Jul 70 - 27 July 70” in item 26a (Non-Pay Periods Time Lost).

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directs that the dates of time lost during the current 
enlistment will be entered on the DD Form 214.  Lost time under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran’s benefits; however, the Army preserves a record of time lost to explain which service between date of entry on active duty and separation date is creditable service for benefits.

10.  Title 10, U.S. Code, section 972(a)(2) and section 972(a)(3) states that an enlisted member of an armed force who; (1) is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; or (2) is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was AWOL one time, received an Article 15, and was discharged with a medical discharge.  

2.  The applicant's Enlisted Qualification Record shows he was AWOL from 20 July 1970 to 27 July 1970 (8 days).  The Record of Proceedings under Article 15 for this period of AWOL is not available.

3.  In accordance with applicable statute, AWOL is lost time.

4.  Based on the governing regulation, the Army preserves a record of time lost to explain which service between date of entry on active duty and separation date is creditable service for benefits.  The applicant's inclusive dates of lost time due to AWOL is properly reflected on his DD Form 214.  Therefore, there is no basis for deleting his period of lost time.

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.



      ________xxx______________
               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)                                         AR20080017099



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ABCMR Record of Proceedings (cont)                                         AR20080017099



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