IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110016735


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 the amount of lost time be corrected on his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states he was absent without leave (AWOL) 3 days from 
17-20 December 1974.  His DD Form 214 shows he was AWOL 8 days from 
3-6 November 1974 and 17-20 December 1974.  He states he was not AWOL in November 1974.

3.  The applicant provides a copy of his DD Form 214.

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.  On 23 September 1974 at Newark, NJ, the applicant enlisted in the Regular Army for 2 years.  He was assigned to Fort Dix, NJ for basic combat training (BCT).

3.  The applicant went AWOL on 3 November 1974 and returned to military control on 6 November 1974, a period of 3 days.  On 6 November 1974, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for this AWOL period.

4.  Following BCT, the applicant was transferred to Fort Gordon, GA for advanced individual training (AIT).  The applicant's AIT company commander notified him on 9 December 1974 that he was initiating action to discharge him under the Trainee Discharge Program (TDP) established by Department of the Army Message DAPE-MPE 011510Z August 1973.  The cited reasons were:

* he was a quitter
* he demonstrated hostility towards the Army
* he showed evidence of social/emotional maladjustment
* he demonstrated clearly substandard performance
* he displayed an inability to accept instructions or directions
* he would not cooperate with peers and superiors
* he had incidents of a discreditable nature
* he displayed apathy

5.  The applicant consulted with counsel and acknowledged notification on 9 December 1974.  On 16 December 1974, the approving authority approved the applicant's discharge.

6.  On 17 December 1974, the applicant went AWOL again and never returned to Fort Gordon.  He was discharged in absentia on 20 December 1974.  His 
DD Form 214 shows, in Item 21 (Time Lost), 8 days.  In Item 27 (Remarks), it shows two periods of AWOL, from 3 to 6 November 1974 and from 17 to 
20 December 1974.

7.  Army Regulation 630-10 (Absence Without Leave and Desertion) provides guidance for determining AWOL or desertion status.  It defines procedures for administration of persons in such status.  It gives instructions:  for starting apprehension efforts.  It also describes administrative actions for Soldiers returning to military control.  It states:

	a.  Soldiers will be reported AWOL when they absent themselves without authority and remain absent for more than 24 hours.

	b.  Absentees and deserters are considered returned to military control when they:

* surrender to military authorities
* are delivered to military authorities
* are arrested by or for military authorities
* are available for transfer to military custody after being held by civil authorities

	c.  Soldiers who are being processed for discharge under Army Regulation 635–200 may be separated without physically returning to military control when AWOL after receiving notice of separation processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues he was never AWOL in November 1974.  However, the record clearly shows he was AWOL on 3-5 November 1974 and returned to military control on 6 November 1974, at which time he was punished under Article 15, UCMJ.

2.  The applicant was processed for administrative discharge under the TDP.  During that process, he went AWOL on 17 December 1974 and remained absent through his discharge on 20 December 1974.

3.  The applicant's first period of AWOL was 3 days, not 4 days as stated on his DD Form 214.  His second period of AWOL was 4 days.  His DD Form 214 should be corrected to show in:

* Item 21 "7 days lost (See Item 27)"
* Item 27 "7 days lost under 10 USC 972 from 741103-741105; 741217-741220"

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 amended by correcting his DD Form 214 as follows in:

* Item 21 deleting the current entry and adding "7 days lost (See Item 27)"
* Item 27 deleting the current entry7 and adding "7 days lost under 10 USC 972 from 741103-741105; 741217-741220"

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:

* completely deleting his lost time in November 1974
* changing his 4 days of lost time in December 1974 to 3 days of lost time



      _______ _   _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)                                         AR20110016735



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ABCMR Record of Proceedings (cont)                                         AR20110016735



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