IN THE CASE OF:	  

		BOARD DATE:	    16 March 2010

		DOCKET NUMBER:  AR20090015874 


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 notations of lost time from block 26a (Non-Pay Periods Time Lost) and block 30 (Remarks) from his DD Form 214 (Report of Transfer or Discharge).

2.  The applicant states, in effect, he had no lost time.  While in basic training he received emergency leave due to his father's serious illness.  Because his father did not improve within the initial period of leave, he was told to remain with him and his leave was extended.  With his father's improved health he returned to the military but due to a lack of available transportation from Oakland Army Base [CA] to Fort Bragg [NC], his return was delayed beyond the additional leave period.  When he returned to his unit, he was told that the unit had him listed as absent without leave (AWOL) because his company commander was not told of the extensions of his leave and delay due to non-availability of military transportation.  He was told that his duty status would be cleared up later.

3.  The applicant provides a copy of his DD Form 214.

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 enlisted in the Regular Army (RA) on 31 October 1969, completed training, and was awarded military occupational specialty (MOS) 63H (Automotive Repairman).

3.  The applicant was honorably released from active duty on 5 May 1972 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5, and DA Message 102035ZDEC 71, Secretarial Authority - early release program for overseas returnees.

4.  His DA Form 20 (Enlisted Qualification Record) provides the following:

	a.  he was advanced to specialist four (E-4) on 5 December 1970;

	b.  he entered active duty on 31 October 1969 with an expiration of term of service (ETS) date of 30 October 1972, modified to 8 May 1972;

	c.  block 38 (Record of Assignments) shows he received "excellent" conduct and efficiency ratings throughout his assignments;

	d.  block 41 (Awards and Decorations) show his awards as the National Defense Service Medal, Meritorious Unit Commendation, Army Good Conduct Medal (first award), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and
	
	e.  block 44 (Time Lost Under Section 972, Title 10, U.S. Code and  Subsequent to Normal Date of ETS) is blank.

5.  His DD From 214 shows the following:

	a.  he entered active duty on 31 October 1969 and he was released from active duty on 5 May 1972;

	b.  he served 2 years, 6 months, and 5 days of total active service with 1 year, 11 months and 1 day of foreign service;

	c.  he was awarded the National Defense Service Medal, Meritorious Unit Commendation, and the Army Good Conduct Medal;

	d.  block 26a shows the entry "25DEC11;JAN 72"; and

	e.  block 30 shows the entry "18DAY  25DEC  11JAN 71."

6.  The record contains no documentation of any period of lost time except for the entries contained on his DD Form 214.

7.  A Report of Morning Report Search, dated 29 August 1972, for the period December 1969 - January 1970, December 1970 - January 1971, and December 1971 - January 1972, revealed only a finding that the applicant departed on ordinary leave (emphasis added) on 18 December 1969 and returned from ordinary leave (emphasis added) on 4 January 1970.

8.  Title 10, U.S. Code, section 972 requires a Soldier to make up lost time due to being AWOL, confinement, and so forth, prior to separation.

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  It stated that for block 26a, enter inclusive dates of non-pay periods/time lost during the preceding 2 years.

10.  Army Regulation 635-5 further stated that for block 30, if the individual lost any time prior to normal ETS as indicated on his/her DA Form 20, enter the total number of days lost with inclusive dates.  Example:  "4 days lost under 10 U.S.C. 972 from 10 Nov 68 thru 13 Nov 68."  Any time lost subsequent to normal ETS will be shown separately.  Example:  "2 days lost subsequent to normal ETS from 19 Nov 68 thru 11 Nov 68."

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, he had no lost time.  When he returned from emergency leave he was told that the unit had him listed AWOL because the command had not told his company commander of the extensions on his leave and delay due to non-availability of military transportation.  He was told that his duty status would be cleared up later.


2.  The record contains no supporting documentation for the time lost entries on the DD Form 214 at blocks 26a and 30.  In fact they are contradicted by the entries (or lack of entry) on the DA Form 20.  Further, these entries themselves are inconsistent as to the year of occurrence.

3.  The mathematic calculations between the date of entry and date of release matches the net service entry this period.  Had the applicant been charged with a period of AWOL, the period of lost time would have been required to have been made up and his ETS would have been extended or his period of net service reduced to account for the period of time lost.  The only adjustment to the applicant's ETS was a reduction due to his separation based on the early release program.

4.  Combining the above facts with the Morning Report information and the fact that the applicant was awarded the Army Good Conduct Medal, it appears that the period in question was in fact considered to be charged as ordinary leave and not a period of AWOL.

5.  Therefore, the entries of lost time at blocks 26a and 30 on the DD Form 214 can not be substantiated and should be deleted.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from block 26a of his DD Form 214 the entry "25DEC-11Jan72" and replacing it with the entry "None"; and




   b.  deleting from block 30 of his DD Form 214 the entry "18 Day  
25Dec-11Jan71."



      _______ _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)                                         AR20090015874



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ABCMR Record of Proceedings (cont)                                         AR20090015874



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