IN THE CASE OF

		BOARD DATE:	    3 January 2013

		DOCKET NUMBER:  AR20120009734 


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 entry "1 day" in item 21 (Time Lost) of his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states he believes the entry was deliberately placed in           item 21 of his DD Form 214 because he was in a fight with the top mechanic in the company who was later medically discharged.  After that, his life in Korea was hell and he was penalized for every little thing.  He claims his company commander tried everything possible to have him placed in confinement, but he didn’t succeed.  He believes his former company commander may have been stationed in the Records Department in St. Louis, MO, and was responsible for putting the entry on his record. 

3.  The applicant provides:

* self-authored statement
* photograph 
* résumé
* three Enlisted Efficiency Reports
* DA Form 31 (Request and Authority for Leave)
* Special Orders Number 76
* Three DA Forms 2627-1 (Record of Proceedings Under Article 15, (Uniform Code of Military Justice (UCMJ))
* DA Form 87 (Certificate of Training)
* Several miscellaneous letters, memoranda, and orders pertaining to his military service
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.  Records show the applicant was inducted into the Army of the United States on 8 December 1972.  He completed the training requirements and he was awarded military occupational specialty 64C (Motor Transport Operator).  

3.  On 6 December 1974, the applicant was honorably released from active duty in accordance with chapter 2, Army Regulation 635-200 (Personnel Separations) for completion of required service.  The complete facts and circumstances surrounding the creation of his DD Form 214 are not available for review.  However, the DD Form 214 shows he completed 1 year, 11 months, and 29 days of creditable active service.  Item 21 lists "1 day" of time lost.  Item 27 (Remarks) contains the entry "1 day excess leave."

4.  The applicant provides and his record contains Special Orders Number 76, issued by Headquarters, 2d Infantry Division, dated 18 April 1974, which authorizes the applicant to proceed on permanent change of station (PCS).  His availability date is listed as 10 July 1974 with a reporting date to Fort Sam Houston, TX, of 16 August 1974.

5.  The applicant provides a copy of a DA Form 31 for PCS leave for 30 days; however, there is no indication of the period for which he was approved for leave and there is no date indicating when the applicant departed on leave.  The form does show the applicant arrived at Fort Sam Houston, TX, on 16 August 1974.

6.  The applicant's record contains a letter written by the applicant on  
13 November 1982, in which he requests clarification of item 21 of his DD Form 214.  On 18 January 1983, the applicant was informed by the Director, Personnel Services Directorate, U.S. Reserve Components Personnel and Administration Center, St. Louis, MO, that his DD Form 214 was correct as shown.   
7.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Item 27 of the version in effect at the time was used to complete entries too long for their respective blocks and/or mandatory entries.  For an enlisted Soldier, if the individual lost any time prior to the normal expiration of his or her term of service, item 27 would show the total number of days lost with inclusive dates, for example, "4 days lost under Title 10, U.S. Code, section 972, from 10 June 1968 through 14 June 1968."  If the individual used excess leave, item 27 would show the dates of excess leave, for example, "excess leave of 5 days from 5 May 1966 through 10 May 1966."

8.  Army Regulation 630-5 (Leaves and Passes), which establishes the policies and provisions for the Army leave program, notes that excess leave may be granted in emergency or unusual circumstances.  Excess leave is generally limited to not more than 60 days.  All periods of excess leave are without pay and allowances and no leave accrues to Soldiers during periods of excess leave.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the entry "1 day" as shown in item 21 of his DD Form 214 should be removed was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant provided a DA Form 31; however, there are no inclusive dates listed on the form.  By regulation, excess leave may be granted in emergencies or unusual circumstances and will only be granted upon request of the member.  It is presumed the applicant may have had to use more leave than what he had accrued at the time.  

3.  Upon release from active duty, the period of excess leave was listed on his DD Form 214 as required by applicable regulations.  This document carries with it a presumption of Government regularity in its creation.  Absent evidence to the contrary, it is presumed that the information entered on the form is correct.

4.  The applicant's records do not contain nor has the applicant provided evidence to support his contention.  In view of the foregoing, he is not entitled to the requested relief.



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)                                         AR20120009734



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009734



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1