DOCKET NUMBER:  AR20090002908 


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 all references to his being AWOL (absent without leave) be cleared from his records.

2.  The applicant states, in effect, that Item 26a (Non-Pay Period Time Lost) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) is incorrect.  He states, in effect, that he was not AWOL during that period and this needs to be cleared off of his record.  He emphatically adds that he was not at any time AWOL and he is providing proof of this.  He concludes by stating, in effect, that he is in good standing with his service time - he served in Vietnam, was shot across the chest, received a Purple Heart, and earned the Good Conduct Medal but has not received it because of this error.

3.  In support of his application, the applicant provides a copy of two letters addressed to his father by the Special Processing Detachment, U.S. Army Training Center, Infantry, Fort Jackson, South Carolina.  These letter are dated 10 and
19 December 1969.

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 evidence shows the applicant enlisted in the Regular Army for three years on 29 August 1967.  He took his basic combat training at Fort Bliss, Texas, and his advanced individual training at Fort Polk, Louisiana.  Upon completion of his training, the applicant was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant served in the Republic of Vietnam during the period from
13 February 1968 through 16 October 1969.  The applicant was awarded the Purple Heart on 5 March 1968 for having been wounded as a result of enemy action on 4 March 1968.

4.  On 6 November 1969, the applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself without authority from his unit on 27 October 1969 and remaining so absent until 5 November 1969.  The punishment imposed on the applicant for this violation of the UCMJ was a forfeiture of $62.00 pay per month for one month.  The applicant did not appeal the punishment imposed.

5.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 27 October 1969 through 4 November 1969, a period of 9 days.

6.  There is no evidence the applicant was awarded the Good Conduct Medal while he served on active duty.  There are no orders in his service personnel record which awarded him the Good Conduct Medal and there is no entry in Item 41 (Awards and Decorations) of his DA Form 20 that indicates he was awarded the Good Conduct Medal.

7.  The applicant was honorably released from active duty, in the rank/pay grade of specialist four (SP4)/E-4, on 4 September 1970, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations) at the expiration of his term of service.  On the date of his release from active duty, the applicant had 2 years, 11 months, and 28 days of creditable service with time lost from 27 October 1969 through 4 November 1969.

8.  On 10 December 1969, the Special Processing Detachment, U.S. Army Training Center, Infantry, Fort Jackson wrote a letter to the applicant's father and informed him that his son had been AWOL since 20 November 1969 and that he was dropped from the rolls of the unit as a deserter on 1 December 1969.

9.  On 19 December 1969, the Special Processing Detachment, U.S. Army Training Center, Infantry, Fort Jackson wrote a second letter to the applicant's father and informed him that his son had not been AWOL as he [the father] had previously been informed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that all references to his being AWOL for the period from 27 October through 4 November 1979 be cleared from his record.  The applicant contends that the evidence he provided is proof that he was not AWOL.

2.  The evidence shows that the applicant was AWOL for the period from 
27 October 1969 through 4 November 1969.  The applicant received nonjudicial punishment as a result of this absence.  The record of nonjudicial punishment is a matter of record in his service record.  This absence was also made a matter of record in Item 44 of his DA Form 20 and on 4 September 1970, the date of his release from active duty, this information was transposed to Item 26a of his DD Form 214.

3.  The letters that the applicant's father received indicate that the applicant had absented himself without authority on 20 November 1969 and had been dropped from the rolls of his unit on 1 December 1969.  A discovery was apparently made that this information was erroneous and a second letter was sent to the applicant's father advising him that his son had not been AWOL as it had been earlier reported.  As can clearly be seen, this erroneously reported period of absence was after the period for which the applicant received nonjudicial punishment and which is correctly recorded in his service records.

4.  In order to justify correction of a military record, the applicant must show, 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request to clear all references to his being AWOL during the period from 27 October through 4 November 1969 from his records.


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)                                         AR20090002908



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ABCMR Record of Proceedings (cont)                                         AR20090002908



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