BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110019709 


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 removal of the 10 days of lost time from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) ending on 27 November 1970.

2.  The applicant states:

	a.  He was about 19 or 20 years of age at the time he was serving in Vietnam. He extended his tour of service in Vietnam for 6 months, granted leave to go home, and returned late.  

	b.  His commanding officer tried to let the matter go; but the company clerk kept pushing for him to get an Article 15 which the company commander finally initiated.  His company commander told him that once he was discharged he could have the Article 15 removed from his DD Form 214.

	c.  At the time of discharge the only thing he thought about was going home.  Now that he is much older he would like to use his veteran's benefits to buy a home and he wants the lost time removed from his record.

3.  He 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.  The applicant’s military record shows he enlisted in the Regular Army (RA) on 14 May 1968 for 3 years.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 3 November 1968, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his unit from 5 to 8 November 1968.  

4.  He served in Vietnam from 6 April 1969 through 26 November 1970.

5.  On 21 January 1970, he requested his overseas tour be extended for a period of 6 months.  His request was approved on 22 January 1970.

6.  On 24 January 1970, he requested a 30-day special leave to travel to the Continental United States (CONUS) with a start date of 2 March 1970.  His request was approved on 26 January 1970.

7.  Letter Orders Number 2-5 were issued by Headquarters, Special Troops, U.S. Army Vietnam, dated 4 February 1970, granting him a 30-day special leave of absence with an effective date of 2 March 1970 to return home.

8.  On 27 April 1970, he again accepted NJP under the UCMJ for failing to return to his unit in accordance with his approved leave and being in an AWOL status from 15 to 25 April 1970.  

9.  On 27 November 1970, he was honorably released from active duty as an overseas returnee and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with completing 2 years, 6 months, and 
4 days of active service.

10.  Item 26a (Non-Pay Periods Time Lost) of his DD Form 214 shows he was absent from 15 to 25 April 1970.  Item 30 (Remarks) of this form contains the entry “10 days time lost Line A Table 2-2 Army Regulation 601-280 Applies.”
11.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS [expiration of term of service]) of his DA Form 20 (Enlisted Qualification Record) shows he had 10 days of lost time from 15 to 25 April 1970 due to being AWOL.

12.  Army Regulation 635-5 (Personnel Separation – Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  The regulation stated Item 22b (Total Active Service) would list the total amount of active service between the date of entry on active duty and separation date, less time lost under Title 10, U.S. Code, section 972.  The inclusive dates of non-pay/time lost during the preceding 2 years would be listed in Item 26a.

13.  Title 10, U. S. Code, section 972 specifies that all enlisted members of an armed force who are absent from their organization, station, or duty for more than 1-day without proper authority, as determined by competent authority, are required to make up lost time.  

14.  Army Regulation 601-280 (Personnel Procurement - Army Reenlistment Program), in effect at the time, prescribed eligibility criteria governing the immediate enlistment in the RA of persons currently serving on active duty with the Army.  Table 2-2 contained a listing of disqualifications that could be granted waivers to permit immediate enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the RA on 14 May 1968 and he was released from active duty on 27 November 1970.  After 10 days of lost time is subtracted from his period of active service he completed 2 years, 6 months, and 4 days of active service.

2.  His contention that his AWOL period should be removed from his DD Form 214 has been noted.  However, the evidence of record shows he was granted a 30-day special leave of absence with an effective date of 2 March 1970 to return to his home.  On 27 April 1970, he was punished under Article 15 for failing to return to his unit and remaining in an AWOL status from 15 to 25 April 1970 
(10 days).  

3.  There is no evidence of record and he provided none to show he was granted an extension of authorized leave from the appropriate authority for the period 15 to 25 April 1970.  Additionally, he has provided no evidence to show the entry in Item 26a of his 1970 DD Form 214 is in error.

4.  The applicable regulation shows that lost time not made good would be subtracted from the net active service.  Removal of lost time from a military record will only be accomplished when an error or injustice is found.  Since the lost time shown on his 1970 DD Form 214 was a result of him being AWOL there has been no basis established for removal of the lost time; therefore, the entry should not be removed from his DD Form 214.

5.  In the absence of evidence to the contrary it is appears that all actions taken by the military were proper and in conformance with applicable regulations.  

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)                                         AR20110019709



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ABCMR Record of Proceedings (cont)                                         AR20110019709



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