IN THE CASE OF:
BOARD DATE: 15 March 2011
DOCKET NUMBER: AR20100022432
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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), Item 26b (Day Accrued Leave Paid be corrected by removing the 26 days of excess leave.
2. The applicant states he was given a 6-month early out from Vietnam. He was told to go home and his discharge would be sent to him. However, he received a letter directing him to report back to the base and he was discharged. His
DD Form 214 shows 26 days of excess leave and he was not a bad Soldier.
3. The applicant does not provide any additional documents.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests the applicant's DD Form 214, Item 26b, be corrected.
2. Counsel states he is available for questions.
3. Counsel does not provide any additional documents.
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 applicant enlisted in the Regular Army on 30 October 1970 and he was awarded the military occupational specialty of radio teletype operator. He served in Vietnam from 5 July 1971 to 13 March 1972, and he was transferred to Company A, 57th Signal Battalion at Fort Hood, TX.
3. He was honorably released from active duty on 4 August 1972 by reason of Secretarial Authority. Item 26b of his DD Form 214 shows he was not paid for any accrued leave and refers the reader to Item 30 (Remarks). Item 30 shows the applicant took 26 days of excess leave from 29 March to 16 April 1972 and from 20 June to 26 June 1972.
4. Army Regulation 630-5 (Leave and Passes), in effect at the time, provided for Soldiers on active duty to earn 30 days of leave a year with pay and allowances. Excess leave is a nonchargeable absence granted to active duty Soldiers for emergencies or unusual circumstances or as otherwise specified by regulation to include Soldiers waiting for punitive discharge, pending administrative discharge, or pending involuntary separation.
DISCUSSION AND CONCLUSIONS:
1. The applicant apparently believes that excess leave is only given to Soldiers who are being given unfavorable discharges. This is not so. Excess leave is used anytime leave is approved and the Soldier does not have sufficient leave to cover the absence.
2. The applicant's records are silent as to why excess leave was granted, which is not unusual in cases that do not involve punitive discharges.
3. In the absence of evidence to show the entry concerning excess leave is in error, a presumption of regularity must be made that what the Army did was correct. It is up to the applicant to overcome that burden of proof.
4. In view of the foregoing, there is no basis for granting the applicants request.
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) AR20100022432
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ABCMR Record of Proceedings (cont) AR20100022432
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