BOARD DATE: 12 January 2011
DOCKET NUMBER: AR20100021191
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, through his Member of Congress, the removal of the AWOL (absence without leave) from his records.
2. The applicant states his group was told to be ready in the morning to be picked up. They were ready at the time they were given but no one picked them up. They did not desert.
3. The applicant provides:
* WD AGO Forms 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) for the periods ending on 25 June 1945 and 5 January 1947
* Citation for award of the Silver Star and an Oak Leaf Cluster to the Silver Star
* General Orders awarding him an Oak Leaf Cluster to the Silver Star
* Citation for award of an Oak Leaf Cluster to the Army Commendation Medal
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 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 applicants WD AGO Form 53-55 shows he initially enlisted in the Regular Army on 2 June 1939. This form also shows at the time of his separation, he held an administrative specialist military occupational specialty and he was assigned to Company E, 39th Infantry.
3. The applicant's WD AGO Form 53-55 shows he served in the European-African-Middle Eastern Theater of Operation from 26 September 1942 to 12 January 1945 and 27 February 1945 to 17 June 1945.
4. On 17 September 1943, while assigned to Company E, 39th Infantry, he pled guilty at and was convicted by a special court-martial to one specification of being AWOL from his organization at Ghardinamo, Algiers, from about 1 July 1943 to about 2 July 1943. The court sentenced him to a forfeiture of $20.00 pay per month for 6 months. His sentence was approved and ordered executed by the convening authority on 24 September 1943.
5. He was honorably separated on 25 June 1945. Items (Military Qualifications and Date (i.e. infantry, aviation, and marksmanship badges, etc.) and item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows he was awarded the:
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-30)
* Combat Infantryman Badge
* Expert Marksmanship Qualification Badge with Bayonet Bar
* American Defense Service Medal
* Bronze Star Medal
* Distinguished Unit Badge
* European-African-Middle Eastern Service Medal
* Good Conduct Medal
* Purple Heart with two oak leaf clusters
* Silver Star with oak leaf cluster
6. Item 55 (Remarks) of his WD AGO Form 53-55 shows he had 2 days of lost time under the Articles of War.
7. He reenlisted in the Regular Army on 4 December 1945 and served through multiple reenlistments, within and outside continental United States, including service in Korea and Japan, and he ultimately retired on 28 February 1962.
8. War Department Technical Manual 12-236 (Preparation of Separation Forms) provides that the appropriate separation form will be prepared for all enlisted personnel separated from the service by reason of discharge, retirement, or release from active duty or transfer to a Reserve Component. This manual states item 55 is used for completion of entries specified in War Department Directives. For time lost under Article of War 107, only the total number of days is shown; inclusive dates are not required.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows he was convicted by a special court-martial of one specification of being AWOL from 1 to 2 July 1943. By law and regulation, this period of AWOL is considered lost time and is not creditable service for pay, retirement, or veterans benefits. There is no evidence in the available record and the applicant did not provide any evidence that shows he made this period of lost time up.
2. The applicant's distinguished service as well as his valor awards is noted. Additionally, his sincerity with respect to what transpired in 1943 is also noted. However, the record shows he was convicted by a special court-martial in accordance with his pleas. There is no indication of an error or an injustice.
3. Even if the lost time is made up, the Army preserves a record of lost time to explain which service between date of entry on active duty and separation date is creditable service. The separation document in effect at the time required for enlisted Soldiers an entry of the total number of days lost under Article of War 107. The lost time is correctly shown on his WD AGO Form 53-55 and there is no basis to remove this entry.
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) AR20100021191
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ABCMR Record of Proceedings (cont) AR20100021191
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