IN THE CASE OF:
BOARD DATE: 29 December 2009
DOCKET NUMBER: AR20090013451
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 the entry "Item 26b: Excess leave of 8 days from
12 Dec 71 thru 19 Dec 71" (12 December 1971 through 19 December 1971) be removed from item 30 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of
27 August 1972.
2. The applicant states he had a 30 day leave from 20 November 1971 to
20 December 1971 when he returned from the Republic of Vietnam.
3. The applicant provides a copy of a letter from the Army Board for Correction of Military Records (ABCMR), dated 27 April 2009, 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 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. The applicant's military personnel records show he enlisted in the Regular Army on 24 November 1969 for a period of 3 years. He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 63B (Wheel Vehicle Mechanic).
3. The applicant was assigned to the 10th Transportation Company in the Republic of Vietnam during the period from 1 December 1970 to 15 November 1971.
4. On 24 August 1972, the applicant was released from active duty. He had completed 2 years, 9 months, and 1 day of active service that was characterized as honorable.
5. There are no official documents such as Leave and Earnings Statements (LES), leave forms, or travel vouchers available that would provide for a determination of how much leave the applicant took during his enlistment or how much leave he had accrued and had taken when he departed Vietnam.
6. During the period of the applicant's enlistment, official leave records showing leave accrual and leave taken were maintained by the U.S. Army Finance Center in Indianapolis, IN. These records have since been transferred to the Defense Finance and Accounting Service (DFAS) in Indianapolis, IN.
7. The letter, dated 27 April 2009, from the ABCMR advised the applicant that he could request his LESs for his period of service from DFAS.
8. Army Regulation 635-5 (Separation Documents), then in effect, provided for an entry in item 30 of the DD Form 214 for inclusive dates of excess leave.
9. Department of Defense Instruction (DODI) 1327.06, Subject: Leave and Liberty Policy and Procedures, states that members of the Armed Forces are entitled to accumulate leave at the rate of 2 and 1/2 days for each month of active service.
10. DODI 1327.06 defines excess leave as leave granted that exceeds accrued and advance leave and for which the Service member is not entitled to pay and
allowances. Generally, a negative leave balance at the time of release from active military duty, discharge, first extension of an enlistment, desertion, or death shall be considered excess leave regardless of the authority under which the leave resulting in the negative balance was granted.
11. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the entry concerning excess leave should be removed from his DD Form 214.
2. The applicant had served 2 years, 9 months, and 1 day of active service. Therefore, at the accrual rate of 2 and 1/2 days per month, the maximum amount of leave he could have accrued was 82 and 1/2 days. Any additional leave taken would be excess leave.
3. Official documents showing the amount of leave taken by the applicant are not available for review. Therefore, there is insufficient evidence to make any changes to the entry for excess leave on his DD Form 214.
4. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
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) AR20090013451
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