IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090000716 


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 record be corrected to show he accrued a total of 3 days of time lost and not 22 days as is indicated.

2.  The applicant states, in effect, that he was only absent without leave (AWOL) for 3 days and that he returned on his own.  He claims the Army incorrectly indicates he had 22 days of AWOL.

3.  The applicant provides no additional documentary evidence 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 complete military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents in the NPRC file for the Board to conduct a fair and impartial review of this case.  This case is being considered using a reconstructed record that consists of a partially legible WD AGO Form 53-58 (Enlisted Record and Report of Separation - General Discharge), a WD AGO Form 24A (Service Record), and an Army Discharge Review Board (ADRB) OSA Form 172A (Review of Discharge or Separation) with accompanying documents.    

3.  The applicant's reconstructed service record shows he was inducted into the Army of the United States and entered active duty on 26 January 1949.  Section 12 (Appointments, Promotions, or Reductions) of his WD AGO Form 24A shows he entered active duty in the rank/grade of recruit (private (PV1)/E-1) and that this is the highest rank he attained while serving on active duty.

4.  Section 13 (Record of Trials by Courts-Martial) of the applicant's WD AGO Form 24A shows a summary court-martial (SCM) found the applicant guilty of being AWOL from on or about 5 through on or about 10 July 1949.  The resulting sentence was confinement at hard labor for 25 days and a forfeiture of $10.00.  Section 15 (Time Lost) shows he accrued a total of 22 days of time lost due to one AWOL period of 6 days from 5 through 10 July 1949 and one period of military confinement from 14 through 29 July 1949.  

5.  On 29 July 1949, the applicant was discharged under the provisions of 
Army Regulation 615-369 (Enlisted Personnel – Discharge – Inaptitude or Unsuitability) and received a general, under honorable conditions discharge (GD).  The WD AGO Form 53-58 he was issued at the time shows he completed a total of 6 months and 3 days of active military service and that he accrued
22 days of time lost.  

6.  The record shows the ADRB reviewed the applicant's case on 19 March 1952, and after careful consideration of the evidence of record and independent evidence submitted by the applicant, determined he was properly discharged and voted to deny the applicant's request for an upgrade of his discharge.  

7.  Article 107 of the Articles of War, in effect at the time, provided the guidance for Soldier's to make good time lost.  It stated, in pertinent part, that charged time lost would be every period of AWOL or confinement of more than 1 day.  Title 10, U.S. Code, Section 972 provides the current legal authority regarding the effect of time lost and provides the same guidance provided in Article 107 regarding periods of unauthorized absence that constitute time lost.  
8.  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 also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item instructions for preparing the DD Form 214.  

9.  The separation documents regulation instructions for entering time lost state, in pertinent part, verify that time lost has been subtracted from net active service completed if the lost time was not "made good."  Lost time under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran's benefits.  The regulation governing time lost entries on the WD AGO 53-58 and other separation documents used at the time of the applicant's discharge, in effect, provided the same guidance as the current regulation for documenting time lost under Article 107 of the Articles of War on separation documents.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was only AWOL for 3 days and returned to military control on his own was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  An entry in Section 13 of the applicant's WD AGO Form 24A confirms an SCM convicted the applicant of being AWOL from 5 through 10 July 1949 (6 days), and that the resultant sentence included a period of military confinement.  

3.  Entries in Section 15 of the applicant's WD AGO Form 24A confirm he accrued a total of 22 days of time lost due to a 6-day period of AWOL from
5 through 10 July 1949 and a 16-day period of military confinement from
14 through 29 July 1949.  Therefore, absent any evidence of record or independent evidence provided by the applicant to the contrary, there is an insufficient evidentiary basis to support a correction of the 22 days of total time lost documented in the applicant's record and on his separation document.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this 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
      
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)                                         AR20090000716



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ABCMR Record of Proceedings (cont)                                         AR20090000716



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