BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100022200 


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 of the spelling of his first name as shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and removal of 4 days of lost time from his DD Form 214.

2.  He states his first name is misspelled on his DD Form 214 and should be spelled "Stephen."  His first name on his birth certificate is spelled "Stephen."  He also states he believes the 4 days of lost time are in error due to a lack of communication.  He notified the Army of this error and they stated it doesn't matter, but it does matter to him.

3.  He further states it was unfair that he was punished for his absence under Article 15 of the Uniform Code of Military Justice (UCMJ).  He had just returned from Vietnam.  He went home for 30 days and planned his wedding in 2 weeks before having to report to Fort Campbell, KY.  He signed in to the unit and was instructed to get base housing.  The reception station told him he had 3 days before reporting to duty.  No one told him he had to sign in every day.  He and his spouse went home for more furniture and their wedding gifts.  When they returned, he went to sign in and was told he was absent without leave (AWOL) for those days.  He tried to explain, but the commander wouldn't listen and stated he had to set an example.

4.  He provides:

* DD Form 214
* birth certificate
* letter from his spouse

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 military record shows he enlisted in the Regular Army (RA) for 3 years in pay grade E-1 on 19 July 1968.  Item 5 (Last Name, First Name, Middle Name) and item 57 (Oath of Enlistment) of his DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he was administered an oath and enlisted under the first name spelled as "Steven."  Item 57 also listed his first name using the spelling "Stephen."  However, he signed all enlistment documents using the spelling "Stephen" as his first name.

3.  Special Orders Number 142 were issued by the Armed Forces Examining and Entrance Station on 19 July 1968 enlisting him in the RA with his first name spelled as "Steven."

4.  On 12 November 1968, he accepted punishment under Article 15, UCMJ, for possession of ammunition in violation of a lawful regulation on 8 November 1968.

5.  He served in Vietnam from 14 December 1968 through 13 December 1969.

6.  Item 1 (Name (Last, first, middle initial) and Service Number) of his DA Form 20 (Enlisted Qualification Record) shows his first name spelled as "Steven."  However, item 47 (Signature of Individual) of his DA Form 20 shows he signed his first name using the spelling "Stephen."

7.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration of Term of Service (ETS)) of his DA Form 20 shows he had 4 days of AWOL from 24 to 27 January 1970.

8.  There is no indication in his records that nonjudicial punishment was imposed under Article 15, UCMJ, for this period of AWOL.
9.  Special Orders Number 156 were issued by the U.S. Army Training Center and Fort Campbell on 24 June 1971 releasing him from active duty with his first name spelled as "Steven."

10.  On 14 July 1971, he completed and signed a DA Form 664 (Serviceman's Statement Concerning Application for Compensation from the Veterans Administration) using the first name spelled as "Steven."

11.  He was honorably released from active duty in pay grade E-5 on 22 July 1971 at his ETS and transferred to the U.S. Army Reserve (USAR) Control Group.  He was credited with completion of 3 years of net active service.

12.  Item 1 (Last Name, First Name, Middle Name) of his DD Form 214 shows his first name spelled as "Steven."  Item 26a (Non-Pay Periods Time Lost (Preceding 2 Years)) shows he was credited with lost time from 24 through 27 January 1970.  Item 30 (Remarks) shows he was credited with 4 days of lost time.  Item 32 (Signature of Person Being Transferred or Discharged) shows he signed his first name using the spelling "Steven."

13.  Letter Orders Number 06-1230997 were issued by the U.S. Army Reserve Components Personnel and Administration Center on 19 June 1974 discharging him from the USAR on 1 July 1974 with his first name spelled as "Steven."

14.  He provided a certified copy of State of Ohio Tuscarawas County Birth Certificate issued on 30 September 1968.  This document identifies a male registrant with the first name spelled as "Stephen" was born on 4 March 1949, the same birth date as the applicant.

15.  He also provided a letter from his spouse in which she states she and the applicant were married on 17 January 1970.  One day after getting married, they were on their way to Fort Campbell where the applicant was to report for the rest of his time (18 months) in the Army.  On 19 January, he went to the base to check in and request housing for them.  He was told he didn't have to report for duty for 3 days, so they decided to return home to collect some furniture from family and friends and wedding gifts.  While they were gone, which was only 2 days, he was reported AWOL.  They never told him he was to report daily, only that he didn't have to report for duty for 3 days.  This is how she remembers the situation.

16.  Army Regulation 635-5 (Personnel Separations - Separation Documents), then in effect, provided instructions for the preparation of the DD Form 214.  The regulation stated that item 1 would list the last name, first name, and full middle name or names, if any, of the individual being separated.  The regulation required that the dates of time lost during the current enlistment would be entered on the DD Form 214.  Item 26a would list the inclusive dates of non-pay periods/time lost during the preceding 2 years.  Item 30 would list the total of number of days lost if the individual lost any time prior to normal ETS as indicated on the DA Form 20.  Lost time under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veteran's benefits; however, the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows documents contained in the applicant's military records record the spelling of his first name as "Steven" and Stephen."  He signed several documents in his records spelling his first name as "Stephen." He has submitted his birth certificate showing the spelling of his first name as "Stephen." 

2.  The evidence of record and the documentation submitted with the application are sufficient to show the spelling of his first name should be "Stephen."  Therefore, it is concluded Item1 of his DD Form 214 should be corrected to show the spelling of his first name as "Stephen."

3.  His contention that the 4 days of lost time should be removed from his DD Form 214 has also been noted.  However, the evidence shows he was AWOL from 24 to 27 January 1970 and this is lost time.  Lost time is non-creditable for pay and for all other purposes.  He provided no evidence to show he was granted authorized leave for this period or that he was erroneously or unjustly credited with 4 days of AWOL.  He provided no evidence to show the entry pertaining to lost time in item 30 of his DD Form 214 was incorrectly made. Therefore, he is not entitled to removal of 4 days lost time from his DD Form 214.

4.  In view of the foregoing, his should be corrected as recommended below.

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 correcting Item 1 (Last Name, First Name, Middle Name) of the applicant’s DD Form 214 by showing the spelling of his first name as "Stephen" and by providing him a document that includes this correction.

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 removal of 4 days of lost time from Items 26a (Non-Pay Periods Time Lost (Preceding 2 Years)) and 30 (Remarks) of his DD Form 214.



      ___________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)                                         AR20100022200



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ABCMR Record of Proceedings (cont)                                         AR20100022200


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