IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120003917 


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, in effect, correction of his records to show restoration of his rank/grade and all pay and allowances for a 14-day period of excess leave from 26 April through 9 May 1969.

2.  The applicant states that:

* he enlisted in the U.S. Army under the "buddy" program
* on 3 March 1967, he was assigned to the 103rd Engineer Company and attached to the 46th Engineer Combat Battalion at Long Binh Vietnam
* his unit came under enemy fire and mortar attacks on a weekly basis
* he was injured on 1 August 1967, treated at the 24th Evacuation Hospital, and placed in a full leg cast for six months
* on 25 September 1967, he was detailed to bush perimeter security manning a .50 caliber machine gun in a bunker
* on 31 January 1968, his position came under attack and he called in air support
* on 27 March 1968, he began a 30-day leave and was stricken with malaria
* on 9 May 1968, he returned to Vietnam for his second tour of duty and was reassigned to the 46th Combat Engineer Battalion
* from May through September 1968 he performed in-country missions
* on 1 November 1968, he was reassigned to Fort Benning, Georgia
   
3.  The applicant further states that during his "30-day leave from 27 March to 9 May 1968" he was stricken with malaria and he was extremely ill.  He was seen by his family physician at his parent's home, the physician provided him a letter documenting his medical condition, and he sent the letter to his unit (Headquarters, 103rd Combat Engineer).  When he returned to his unit in Vietnam, he was told that the letter was never received and he was given an Article 15 for being absent without leave (AWOL).  He accepted the nonjudicial punishment (NJP) because he did not want to be placed in confinement.  He was then reassigned to the 46th Engineer Group at Binh Hoa Airbase in Vietnam because of his Hispanic heritage.

4.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 29 November 1966.  He was awarded military occupational specialty 62G (Quarry Machine Operator).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

a. item 31 (Foreign Service):  Vietnam from 30 April 1967 through
5 December 1968; and

	b.  item 38 (Record of Assignments):

* 103rd Engineer Company (Construction Support), from 2 May 1967 through 4 December 1968
* en route to the continental United States on 5 December 1968
* Company A, 43rd Engineer Battalion, Fort Benning, Georgia, from
27 January 1969 through 23 September 1969



4.  Headquarters, 46th Engineer Battalion (Vietnam), Letter Orders Number
04-09, dated 3 April 1968, authorized the applicant 30 days special leave (not charged as leave) at Long Island, New York effective 4 April 1968.  The order also shows the applicant was to return to his unit upon completion of the special leave.

5.  Headquarters, 103rd Engineer Company (Construction Support), Unit Orders Number 43, dated 28 May 1968, appointed the applicant to specialist four (SP4)/ pay grade E-4.

6.  A review of the applicant's military personnel records shows he received NJP, as follows:

   a.  for willfully disobeying a lawful command on 29 March 1969; his punishment was forfeiture of $46.00;

   b.  for willfully disobeying a lawful command on 16 May 1969; his punishment was forfeiture of $35.00, 7 days of extra duty, and reduction to private first class (PFC) (suspended for 90 days); on 26 May 1969, the suspension of punishment of reduction to PFC was vacated;

   c.  for failing to go at the time prescribed to his appointed place of duty on
22 June 1969; his punishment was forfeiture of $40.00 and retention in correctional custody for 30 days (suspended until 20 December 1969); and

   d.  for being AWOL from 22 to 29 September 1969 and from 6 to 9 October 1969; his punishment was forfeiture of $38.00, reduction (from SP4/E-4) to private/pay grade E-1, and retention in correctional custody for 15 days.

   e.  The applicant did not present matters in extenuation, mitigation, or defense in any of the NJP proceedings and he did not appeal any of the punishments imposed.

7.   A DD Form 214 shows the applicant was honorably released from active duty on 15 December 1969 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.

   a.  He had completed 2 years, 11 months, and 22 days of active service that included 1 year, 7 months, and 6 days of foreign service.

	b.  Item 30 (Remarks) shows he had:


(1) 25 days lost under Title 10, U.S. Code, section 972, as follows:

* from 2 through 16 July 1969
* from 24 through 28 September 1969
* from 4 through 8 October 1969

   	(2)  excess leave of 14 days taken from 26 April through 9 May 1969.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show restoration of his rank/grade and all pay and allowances for a 14-day period of excess leave from 26 April through 9 May 1969 because he was unable to return to his unit in Vietnam due to illness, a physician's letter was sent to his unit and, therefore, he was not in an AWOL status.

2.  The applicant's contentions were carefully considered.

   a.  The applicant provides no substantiating documentation in support of his contention.

   b.  Records show the applicant served in Vietnam from 30 April 1967 through
5 December 1968 (emphasis added).  He was in an excess leave status from
26 April through 9 May 1969 (emphasis added).  Thus, the applicant's contention is not supported by the evidence of record that he was charged 14 days excess because he was unable to return on time to his unit in Vietnam.  Moreover, he is not entitled to pay and allowances for the period of excess leave.

   c.  There is no evidence the applicant received NJP in May 1968.

   d.  Records show the applicant was promoted by his unit command to SP4 (E-4) on 28 May 1968.  This was approximately three weeks after his 30-day special leave period and return to Vietnam.  Thus, records refute the applicant's contention that he received NJP and was reduced in rank upon returning from special leave.  Moreover, this evidence does not support his contention that his chain of command was prejudiced against him because of his Hispanic heritage.

3.  Records show the applicant was reduced from SP4 (E-4) to PV1 (E-1) on
15 October 1969 for being AWOL from 24 through 28 September 1969 and from 4 through 8 October 1969.

   a.  At the time, the applicant did not present matters in extenuation, mitigation, or defense nor did he appeal the punishment.
   b.  He provides insufficient evidence in support of his request for restoration of his rank.

4.  In view of all of 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)                                         AR20120003917



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ABCMR Record of Proceedings (cont)                                         AR20120003917



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