IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100000873


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, removal of time lost from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), accrual of leave for the restored time lost, and payment of additional leave as unused leave balance.

2.  The applicant states, in effect, he was not absent without leave; the unit simply forgot to "add [him] to the roster" on his return from leave.  This time lost should then be restored, he should be credited with earned leave for the period, the earned leave should be added to his unused leave balance, and he should be paid for it now.

3.  The applicant provides a copy of a DD Form 214 for the period ending
19 November 1967 and 10 September 1969.  He states he doesn't have any other documentation, but the Army should have everything to support his claim.

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 for 3 years on 15 November 1966. He was trained in military occupational specialty (MOS) 11B (Light Weapons Infantryman), he completed the Basic Airborne Course, and he was sent to Vietnam.  He arrived in Vietnam on or about 9 June 1967 and he was initially assigned to Company C, 2nd Battalion, 7th Cavalry, 1st Cavalry Division.  One year and 5 days into his enlistment, he reenlisted for 6 years on 20 November 1967.

3.  The applicant was reassigned to Company B, 228th Aviation Battalion, 1st Cavalry Division serving as a helicopter door gunner.  On or about 1 April 1969, it appears he was transferred to the 15th Administration Company, 1st Cavalry Division.

4.  The applicant departed Vietnam on or about 9 September 1969.  He was discharged at the US Army Personnel Center, Oakland Army Base, Oakland, CA on 10 September 1969.

5.  The applicant's records show:

	a.   his first DD Form 214 is for the period 15 November 1966 through 19 November 1967.  The period of service is 1 year and 5 days, with 5 months and 11 days of service in Vietnam.  No time lost is shown.

   b.  his second DD Form 214 is for the period 20 November 1967 through 10 September 1969.  The period of service is 1 year, 8 months, and 28 days, plus his 1 year and 5 days of prior active service, for a total of 2 years, 9 months and 3 days of creditable active service.  A total of 2 years, 2 months, and 9 days was served overseas in Vietnam.  Item 26a (Non-Pay Periods:  Time Lost) contains the entry "25 Jan-16 Feb 69."  Item 30 (Remarks) contains the entry
"22 Days Lost Time:  25 Jan-16 Feb 69."

6.  There is evidence in the applicant's records to explain the time lost entry on his DD Form 214:

   a.  his DA Form 20 (Enlisted Qualification Record), in Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date ETS), shows he was AWOL from 25 January 1969 through 16 February 1969.

	b.  a message from the Enlisted Personnel Directorate, Office of Personnel Operations, Headquarters, Department of the Army (HQDA), dated 27 February 1969, granted the applicant a 10-day leave extension in Yakima, WA because he had to appear in court.  He was directed to report to the U.S. Army Overseas Replacement Station, Fort Lewis on 9 March 1969.

7.  There are no pay records available in the applicant's records, and the records of the Defense Finance and Accounting Service (DFAS) do not date back to 1969.

8.  Title 31, U. S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

9.  Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, provides that the Board begins its consideration of each case with the presumption of administrative regularity.  That is, in the absence of clear evidence to the contrary, the Board will presume that Army records have been properly completed and are correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants the lost time removed from his DD Form 214.  He wants his unused leave balance adjusted and payment of unused leave recomputed.

2.  The applicant's DD Form 214 for the period ending 10 September 1969 shows 23 days of time lost from 25 January 1969 to 16 February 1969; this information is repeated on his DA Form 20.  His records also show he served in Vietnam from on or about 9 June 1967 to on or about 9 September 1969.

3.  There are no DA Forms 31 (Request and Authority for Leave) in the applicant's records, but there is a message from HQDA, Office of Personnel Operations, dated 27 February 1969, which granted the applicant a 10-day leave extension and directed him to report to Fort Lewis on 9 March 1969 for return to Vietnam.  Unfortunately, there is no indication of when the original leave began; only that it was extended from 27 February 1969 through 8 March 1969.  This is insufficient information to remove the time lost entry from the applicant's
DD Form 214.  In the absence of sufficient information, the presumption of regularity must be made in that the entry of 23 days of time lost on the applicant's DD Form 214 is correct.

4.  There are no finance records available for the Board to see how much leave, if any, the applicant cashed in when he was discharged.  Furthermore, his statement that the time lost entry is erroneous, if correct, would play against his argument that he is entitled to additional pay for unused leave.  In fact, the opposite would hold true; he would have taken more leave than originally authorized which would have reduced his unused leave balance, thereby reducing the cash settlement for unused leave.  The applicant did not timely file his request to this Board which necessarily must rely upon fresh information from which the merits of case can be readily determined.  An applicant who waits does so at his/her own peril.

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)                                         AR20100000873



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)