DOCKET NUMBER:  AR20090003099 


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 DD Form 214 be corrected by deleting the entry showing he has lost time and correcting his middle name.

2.  The applicant states that he was under military control during the time shown as lost time on his DD Form 214.  As for his name, he states that his middle name is Wa____, not Wi_____.

3.  The applicant explains in a letter to the Department of Veterans Affairs dated 22 December 2008 that while he was serving on active duty, his wife and children became homeless and in desperate need of his help.  He requested and was denied leave at that time, so he departed absent without leave (AWOL).  He remained absent for around 30 days and returned of his own accord.  However, he was incarcerated when he returned which resulted in him being given time lost and then he was given the sole choice of accepting a general discharge, contrary to the "boards" recommendation.  The applicant contends he was misled to convince him to accept the general discharge.  He was told that it was a good discharge with no negative consequences including lost time.  The applicant adds " . . . as you can see by my decorations, medals, badges, commendations, citations, and potential campaign ribbons awarded and authorized . . . that I was a valued member of the armed forces and should have been allowed to serve and fulfilled my responsibility."

4.  The applicant does not provide any additional documents.


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 military records show that he enlisted in the Regular Army on 6 January 1969.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows his middle name as Wi_____ and the applicant signed the document as Wi_____.

3.  The applicant completed basic combat training.  While attending advanced individual training he departed in an AWOL status on 21 March 1969 and returned to military control on 11 June 1969.  There is no evidence that the applicant requested leave due to a hardship prior to going AWOL.

4.  On 27 June 1969, a Special Court-Martial convicted the applicant of being AWOL from on or about 21 March to 11 June 1969.  The applicant was sentenced to confinement at hard labor for 2 months and to forfeit $50.00 pay per month for 1 month.  The court-martial sentence was approved on 1 July 1969.

5.  On 11 July 1969, the applicant again departed AWOL and returned to military control on 24 November 1969.  Upon the applicant's return to military control, he was placed in confinement.

6.  While in confinement, on 9 December 1969, the applicant submitted a request for dependency discharge.  In his request, the applicant stated that his wife and two young children were experiencing financial difficulties because his wife was unable to pay their bills.  He continued that his wife required his civilian income as a painter to make ends meet.

7.  The applicant's request was approved by the appropriate authority and the applicant was released from active duty due to hardship and transferred to the U.S. Army Control Group (Annual Training).  His service was characterized as under honorable conditions.  
8.  The DD Form 214 issued to the applicant, Item 26a (Non-Pay Periods Time Lost), shows "21MAR69-10JUN69 and 11JUL69-29DEC69."  Item 30 (Remarks), shows "254 DAYS LOST UNDER 10 USC 972 FROM 21MAR69 THRU 10JUN69; 11JUL69 THRU 29DEC69."

9.  All documents in the applicant's military records which show his middle name have his name reflected as Wi_____.

10.  The Department of Defense Pay Manual, Table 1-1-2, Rule 8 states that a period of absence is not creditable when the absence is because of confinement for more than one day (24 consecutive hours), while awaiting trial (if the trial results in conviction), or confinement as the result of the court-martial sentence.  In addition, Rule 2 of this table states that unauthorized absence of more than 1 day is not creditable service.  This precludes any pay and allowances for a period of AWOL of over 1 day.

11.  On 2 April 1980, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his general discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted with the middle name Wi_____, he signed his middle name as Wi_____ throughout his military service, and he has not submitted any evidence to show his middle name is not Wi_____.  As such, there is insufficient basis to change his middle name.

2.  The applicant's records do not show any evidence of him requesting leave.  For that matter, there is no indication that he told anyone that his family was experiencing a hardship until he requested discharge on 9 December 1969.

3.  But his records clearly show that he was AWOL from 21 March to 10 June 1969 and from 11 July to 23 November 1969.

4.  While the applicant's records are unclear as to his status while confined when he returned to military control, it is presumed that the confinement was a result of the special court-martial sentence.  As such, the time the applicant spent in confinement was also time lost in accordance with the Department of Defense Pay Manual, Table 1-1-2.

5.  As such, the applicant has established no basis for deleting the lost time from his DD Form 214.


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)                                         AR20090003099



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ABCMR Record of Proceedings (cont)                                         AR20090003099



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