IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090015404 


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 removal of the entries pertaining to excess leave from item 30 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states that when he was discharged, the Army kept money for the excess leave from his final pay check.  Anyone looking at the entries in item 30 would think that he was absent without leave when that is not the real meaning here.  Since he repaid the military for those days, he feels those days should not be shown on his DD Form 214 anymore.

3.  The applicant provides a copy of his DD Form 214, dated 1 February 1972, in support of his request.

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 10 April 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty 72B (Communications Center Specialist).

3.  The applicant's records also show that after completion of his Vietnam tour, he was reassigned to Fort Riley, KS, effective on or about 17 November 1971.

4.  On 11 January 1972, the applicant requested an early release from active duty for the purpose of enlisting in the U.S. Army Reserve (USAR)/Army National Guard (ARNG).  His request was subsequently approved and he was honorably released from active duty on 1 February 1972 and transferred to the Georgia ARNG (GAARNG) for the purpose of enlisting in that component.  The DD Form 214 he was issued shows he completed 1 year, 9 months, and 21 days of creditable active service.  Item 30 of this form shows an entry indicating 26 days of excess leave for the periods 27 October 1971 to 14 November 1971 and 30 December 1971 to 5 January 1972.

5.  On 28 March 1972, the applicant enlisted in the GAARNG for a period of 1 year and 3 months.  He was honorably released from the ARNG to the USAR Control Group for completion of his Reserve obligation.

6.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Item 30 of the version in effect at the time was used to complete entries too long for their respective blocks and/or mandatory entries.  For an enlisted Soldier, if the individual lost any time prior to the normal expiration of his or her term of service, item 30 would show the total number of days lost with inclusive dates, for example, "4 days lost under Title 10, U.S. Code, section 972, from 10 June 1968 through 14 June 1968."  If the individual used excess leave, item 30 would show the dates of excess leave, for example, "excess leave of 5 days from 5 May 1966 through 10 May 1966."

7.  Army Regulation 630-5 (Leaves and Passes), which establishes the policies and provisions for the Army leave program notes that excess leave may be granted in emergency or unusual circumstances.  Excess leave is generally limited to not more than 60 days.  All periods of excess leave are without pay and allowances and no leave accrues to Soldiers during periods of excess leave.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the periods of excess leave shown on his DD Form 214 should be removed.

2.  The evidence of record shows that the applicant enlisted in the RA for a period of 3 years on 10 April 1970.  His service record is void of the DA Form 31 (Request and Authority for Leave) for the periods in question; however, by regulation, excess leave may be granted in emergencies or unusual circumstances and will only be granted upon request of the member.  The applicant appears to have used more leave than what he had accrued at the time.  Upon his release from active duty, the periods of excess leave were listed on his DD Form 214 as required by applicable regulations.

3.  The applicant stated he repaid the military for those days of excess leave.  It appears he is implying that he repaid those days with his subsequent enlistment in the GAARNG.  His subsequent enlistment in the GAARNG has no impact on his previously issued DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  ARNG service is not documented on the DD Form 214. It is documented on the National Guard Bureau Form 22.  Additionally, there is no provision to enter inactive service completed subsequent to a Soldier's separation from active duty on a previously issued DD Form 214.

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.  Therefore, there is insufficient evidence to grant him the requested relief in this case.

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)                                         AR20090015404



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ABCMR Record of Proceedings (cont)                                         AR20090015404



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