IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008581 


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 correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to remove the two periods of lost time under Title 10, U.S. Code, section 972 which shows an absent without leave (AWOL) status.

2.  The applicant states, in effect, he was in basic combat training (BCT) and advanced individual training (AIT) during the period 27 November 1968 to
14 January 1969.  He contends this was an error on the part of the U.S. Army for improperly entering information in his record with no supporting documentation.  He realized this error after working with a Department of Veterans Affairs (VA) service representative while applying for benefits.

3.  The applicant provides a copy of an excerpt of the Army Board for Correction of Military Records (ABCMR) Docket Number AR20060015009, dated 26 April 2007; a copy of his DA Form 20 (Enlisted Qualification Record); and 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 provided an extract from ABCMR Docket Number AR20060015009, dated 2 May 2007, wherein he requested correction of his records to show award of the Combat Infantryman Badge (CIB).  This case is not related to his current issue.  Therefore, ABCMR Docket Number AR20060015009 will not be referred to again in these Proceedings.

3.  The applicant's records show he was inducted into the Army of the United States on 27 November 1968.  He successfully completed BCT and AIT at Fort Ord, CA until on or about 18 April 1969.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was honorably released from active duty (REFRAD) on 19 February 1971 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  Item 22 (Statement of Service) shows the following:

* item 22a(1) (Net Service This Period) the entry "1 [year]  11 [months]  
25 [days]"
* item 22a(2) (Other Service) the entry "None"
* item 22a(3) (Total (Line (1) Plus Line (2)) the entry "1  11  25"
* item 22b (Total Active Service) shows the entry "1  11  25"

4.  Item 26a (Non-Pay Periods Time Lost) of his DD Form 214 shows the entries, "27 Nov 68 - 14 Jan 69" and "25 Sep 69 - 4 Nov 69."  Item 30 (Remarks) shows that he had 90 days lost time under Title 10, U.S. Code, section 972, for the period 27 November 1968 - 14 January 1969 and 25 September 1969 - 
4 November 1969.  

5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows he entered BCT on 9 December 1968 with a follow-on assignment to AIT on 
15 February 1969.  The next entry indicates he was in a "casual" status on
19 April 1969, en route to Vietnam.  On 31 May 1969, he was assigned to an infantry unit in Vietnam, serving as a rifleman until 25 September 1969, at which time he was reported as AWOL.  He was subsequently dropped from the rolls (DFR) of the Army as a deserter on 26 October 1969.  On 12 November 1969, he was shown as assigned to the 257th Replacement Company in Okinawa.

6.  On or about 28 November 1970, the applicant returned to Vietnam and he was assigned to D Company, 1st Battalion (Airmobile), 502nd Infantry where he performed duties as a rifleman.

7.  Item 42 (Remarks) of his DA Form 20 shows the following entry:

Returned to dty [duty] 17Nov69 fr [from] AWOL status.  CM [Court-martial] charges dropped.  Admin deter [Administrative determination] made for time lost per ltr [letter] RIA-MP-RC 257th Repl [Replacement] Co X dtd [dated] 11Apr70, subj [subject]:  Classifying absence of PFC N------- S-----.  Period to be made good, 25Sep69 - 4Nov69.  (41 Days)."

8.  A copy of a 257th Replacement Company letter, dated 11 April 1970, shows that as a result of an investigation, the period of lost time from 25 September 1969 to 4 November 1969 was to be made good.  The letter is signed by the acting company commander.

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that would be furnished each individual separated from the Army and established standardized procedures for the preparation and distribution of these documents.  The purpose of a separation document is to provide the individual with documentary evidence of his/her military service.  It is a vital record for interested Government agencies which assist the veteran in obtaining the rights and benefits to which he/she is entitled.  Therefore, it is important that information entered is complete and accurate.  It also established standardized policy for the preparation of the DD Form 214.  It stated, in effect, that the entry for:

* item 22a(1), enter the total service completed between item 10c (Date Inducted) and 11d (Effective Date [of Transfer or Discharge]), less time lost under Title 10, U.S. Code, section 972

* item 22a(2), enter all prior service excluding any service shown in item 22a(1)

* item 22a(3) (Total (Line 1 Plus Line (2)), self-explanatory

* item 22b (Total Active Service), enter the total active service the individual has completed beginning with the earliest period of active service up to and including current period of active duty, less time lost under Title 10, U.S. Code, section 972

* item 26a (Non-Pay Periods Time Lost). enter inclusive dates of non-pay periods/time lost during the preceding 2 years.

* item 30 (Remarks), enter inclusive dates of time lost.  Example:  "Time lost for 3 days from 16 June through 18 June 1945"

10.  Army Regulation 630-10 (Absence Without Leave and Desertion), in effect at the time, provides guidance for determining AWOL or desertion status.  It defines procedures for administration of persons in such status.  It gives instructions for starting apprehension efforts.  It also describes administrative actions for members returned to military control.  This regulation further states when a member returned from an absence that is or appears to be unauthorized, the unit commander will informally investigate the case at once.  The commander will decide whether disciplinary action should be started and/or whether the member should be charged with time lost.  Upon completing this informal investigation, the commander may classify the absence as authorized or classify all or part of it as unauthorized.  That absence, or part of that absence, classified as unauthorized will be considered AWOL unless excused as unavoidable.  If not so excused, the unauthorized absence will be treated as time lost.  Unavoidable absence is defined as an unauthorized absence which happened through no fault of the member and no fault of the Government.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, governed the policies and procedures for the separation of enlisted personnel.  Paragraph 2-4 (Time lost to be made good) stated that every member in active Federal service who renders himself/herself unable for more than 1 day to perform duty will be liable, after a return to full duty status, to service for such period as is necessary to complete his/her full term of service or obligation, exclusive of such time lost.

   a.  Lost time in the sense of this regulation refers to periods of more than 1 day during which a member on active duty is unable to perform duty because of:

* desertion
* absence without proper authority
* confinement under sentence
* confinement while awaiting trial or disposition of member's case, if trial results in convicting
* intemperate use of drugs or alcohol
* disease or injury, the result of member's own misconduct

   b.  Time lost during an enlistment period will be made good at the end of the enlistment period, except that when an enlistment is extended by law, time lost will be made good at the end of the extension.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the two periods of lost time on his DD Form 214 was carefully considered and found to be partially supported by the evidence of record.

2.  The applicant's record shows he was inducted into the Army of the United States on 27 November 1968.  He began BCT on 9 December 1968 with a follow-on assignment to AIT on 15 February 1969.  This is a clear indication that the AWOL status entry during the period 27 November 1968 - 14 January 1969 is erroneous.  Therefore, it would be appropriate to remove this period of lost time from items 26a and item 30 of his DD Form 214.

3.  A copy of the applicant's DA Form 20 shows the AWOL time during the period 25 September 1969 - 4 November 1969 was to be made good per the letter from the 257th Replacement Company, dated 11 April 1970.  As a result, the period of AWOL during 25 September 1969 - 4 November 1969 was determined to be valid and lost time to be made good.  Therefore, there is no basis for removing this portion of the applicant's requested relief from items 26a and item 30 of his DD Form 214.

4.  Item 22 of the applicant's DD Form 214 shows he served a total of 1 year, 
11 months, and 25 days of net service this period, which includes his reported time lost.  However, based on the foregoing, his only period of time lost should have been 25 September 1969 - 4 November 1969, a period of 40 days.  Therefore, items 22a(1), 22a(3), and item 22b should show he completed
2 years, 1 month, and 5 days of creditable active service.

5.  Items 26a of his DD Form 214 show both periods of AWOL; however, the period from 27 November 1968 - 14 January 1969 was determined to be erroneous.  Therefore, this period of AWOL should be removed accordingly,

6.  Item 30 of his DD Form 214 shows he had 90 days of time lost and also lists both periods of AWOL.  Therefore, this portion of his DD Form, 214 should be corrected to remove the erroneous period of AWOL and to show 40 days of time lost during the period 25 September 1969 - 4 November 1969.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  deleting from item 22a(1), 22a(3), and 22b the entry "1  11  25" and replacing these items with the entry "2  1  5";

	b.  deleting from item 26a (Non-Pay Periods Time Lost) the entry "27 Nov 68 - 14 Jan 69"; and

	c.  deleting from item 30 (Remarks) the entry "90 days lost under SEC 972 TITLE 10 USC:  27 Nov 68 - 14 Jan 69 and 25 Sep 69 - 4 Nov 69" and replacing it with the entry "40 days lost under SEC 972 TITLE 10 USC:  25 Sep 69 - 4 Nov 69."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing from his DD Form 214 the AWOL period from 25 September 1969 - 4 November 1969.



      _______ _  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)                                         AR20100008581



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ABCMR Record of Proceedings (cont)                                         AR20100008581



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