BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110013670 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was absent without leave (AWOL) from 19 October to 9 December 1982 instead of 23 December 1986 to 12 February 1987.

2.  He states, in effect:

* his records should reflect the dates he was actually missing from the Army
* his USAARMC [U.S. Army Armor Center] Form 4939 (Characterization of Service Checklist for Administrative Discharge Actions) reflects the total length of time he served 
* his DD Form 214 shows he was missing 52 days from 23 December 1986 to 12 February 1987 instead of 19 October to 9 December 1982
* his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was missing 1,521 days which is not true

3.  He provides his DD Form 214, DA Form 2-1, USAARMC Form 4939, and DD Form 458 (Charge Sheet).

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 on 27 March 1979 and was discharged on 27 September 1981 for the purpose of immediate reenlistment.  He completed 2 years, 6 months, and 1 day of active military service during this period.  

3.  He reenlisted in the Regular Army on 28 September 1981.  

4.  Item 21 (Time Lost) of his DA Form 2-1 shows he was AWOL from 19 October 1982 through 17 December 1986 for a total of 1,521 days.  

5.  On 19 December 1986, charges were preferred against the applicant for being AWOL from 19 October 1982 to 18 December 1986.  

6.  On 23 December 1986, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if an under other than other conditions (UOTHC) discharge was issued.  He did not submit statements in his own behalf.  

7.  His service record contains a DA Form 31 which shows he was placed on excess leave on 23 December 1986 to an indefinite date.  In block 30 (Remarks) of this document, he acknowledged he understood this leave was without pay and allowances, no leave would accrue during this period of absence, and any travel connected with this leave was at his own expense.  He further acknowledged he understood if his application for discharge was approved, he would be discharged while in a leave status and this leave authorization would terminate on the effective date of his discharge.  

8.  The separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with the issuance of a UOTHC discharge and a reduction to the rank of private/E-1.  
9.  Item 1 of his USAARMC Form 4939 shows his length of time served in the enlistment or period of service as 1 year, 1 month, and 7 days and item 4 shows his period of lost time due to being AWOL as 19 October 1982 to 17 December 1986.  

10.  On 12 February 1987, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC Discharge Certificate.  He completed a total of 3 years, 8 months, and 17 days creditable active service with 1,521 days of lost time due to AWOL.  

11.  His DD Form 214 shows the following entries in:

* item 18 (Remarks), “EXCESS LEAVE OF 52 DAYS FROM 861223-870212”
* item 29 (Dates of Time Lost During This Period) “821019 – 861217”

12.  Army Regulation 635-5 (Separation Documents) directs that the dates of time lost during the current enlistment will be entered on the DD Form 214.  This regulation states:

   a.  Lost time under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however, the Army preserves a record of time lost to explain which service between the date of entry on active duty and the separation date is creditable service for benefits.

	b.  For a Soldier who has excess leave status enter the total number of days and inclusive dates of time spent in an excess leave status.

13.  Title 10, U.S. Code, section 972(a)(2) and section 972(a)(3) states that an enlisted member of an armed force who; (1) is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; or (2) is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his records should reflect the actual dates he was missing from the Army is acknowledged.  However, the evidence of record does not indicate that an error or injustice exists in this case regarding his period of lost time.  
2.  His service record shows he was charged with being AWOL from 19 October 1982 through 17 December 1986 for a total of 1,521 days.  In accordance with the applicable statute AWOL is lost time.  

3.  Based on the governing regulation, the Army preserves a record of time lost to explain which service between the date of entry on active duty and the separation date is creditable service for benefits.  The applicant's inclusive dates of lost time due to being an AWOL status are properly reflected on his DD Form 214.  

4.  The evidence of record shows he was in an excess leave status from 23 December 1986 through 12 February 1987, the date he was discharged.  His 52 days of excess leave is properly recorded in item 18 of his DD Form 214.  

5.  Based on the foregoing, there is no basis for granting the applicant’s 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)                                         AR20110013670



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013670



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1