IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110016186 


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 record by removing 35 days of excess leave and providing him back pay for the entire period.

2.  The applicant states that at the time of his discharge processing his lawyer told him he would receive an honorable discharge, he would be credited with the time he would have served, his sergeant (SGT)/E-5 rank would be restored, he would receive back pay for the entire period, and 35 days of excess leave would be removed.  He states he would like to be present for the discussion of his case.

3.  The applicant provides a self-authored letter and a letter to the President of the United States in support of his application.

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 record shows the applicant enlisted in the Regular Army on 10 January 1978 and was trained in and awarded military occupational specialty 76Y (Supply Specialist).  He was promoted to SGT/E-5 on 12 July 1979 and this was the highest rank he attained while serving on active duty.

3.  On 10 October 1979, the applicant departed absent without leave (AWOL) from his unit in Germany.  He remained absent until 1 November 1979 when he returned to military control at the Personnel Control Facility, Fort Sill, Oklahoma.

4.  On 20 November 1979, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 29 September 1979 through on or about 1 November 1979.

5.  On 20 November 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-marital.

6.  In his request for discharge, the applicant acknowledged he understood that by requesting discharge he was admitting he was guilty of the charge against him or of a lesser-included offense therein contained which also authorized the imposition of a punitive discharge.  He also confirmed he understood that if his request for discharge were approved, he could be discharged under other than honorable conditions and receipt of this type of discharge could result in being deprived of all Army benefits, he could be ineligible for all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged his understanding that he could face substantial prejudice in civilian life as a result of receiving a discharge under other than honorable conditions.

7.  On 20 November 1979, the applicant was placed on excess leave and the separation authority approved the applicant's discharge request on 17 December 1979.  The separation authority directed the applicant's discharge under other than honorable conditions and his reduction to private/E-1.  On 26 December 1979, the applicant was discharged accordingly.

8.  On 3 February 1982 after carefully considering the applicant's record of service and the issues he presented, the Army Discharge Review Board (ADRB) determined his discharge was improper and inequitable and voted to upgrade his discharge to honorable and to change the reason for discharge to Secretarial Authority.  The ADRB noted the applicant's overall record of service was good and the period of AWOL was for less than 31 days and had been erroneously reported on the charge sheet preferring the court-martial charge against the applicant.  The ADRB decision did not comment on excess leave or service credit.

9.  As a result of the ADRB decision, the applicant was issued a new DD Form 214 that corrected his character of service to "honorable" and the authority and reason for discharge to Army Regulation 635-200 (Personnel Separations), paragraph 5-3b, by reason of "determination of the Service Secretary."  The new DD Form 214 listed his rank and pay grade as SGT/E-5 with a date of rank of 12 July 1979, his original date of rank to that grade.

10.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.  Chapter 5, section VIII, contains guidance for requesting excess leave.  It states that excess leave is a nonchargeable absence granted for emergencies or unusual circumstances that includes Soldiers pending an administrative discharge.  The regulation specifies that excess leave is without pay and allowances.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  It states the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Chapter 2, section IV, provides guidance on hearings and disposition of applications.  It states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the excess leave from his record and to be granted service credit and back pay and allowances has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the ADRB upgraded the applicant's discharge to fully honorable and changed the authority and reason for separation to Secretarial Authority based on the applicant's overall record of service and an error made in the dates of AWOL that were used as a basis for the court-martial charge preferred which resulted in the restoration of his grade.

3.  However, while the ADRB action may have been appropriate for the reasons indicated, the record still confirms the applicant was AWOL from 10 through 31 October 1979 and would have been subject to administrative separation under misconduct provisions of the regulation even if he were not subject to a punitive discharge and separation in lieu of trial by court-martial.

4.  Had the applicant been properly separated under the misconduct provisions of the regulation instead of in lieu of trial by court-martial, he still would have been authorized excess leave and been separated prior to the expiration of his term of service.  As a result, there is an insufficient evidentiary basis to support removal of the excess leave and/or to grant him additional service credit and back pay and allowances.

5.  The applicant's request to be present during the discussion of his case has also been carefully considered.  However, given the evidence of record is more than sufficient for the Board to arrive at a fair and impartial decision, a formal personal appearance hearing is not necessary in the interest of justice.

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 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)                                         AR20110016186



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110016186



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1