IN THE CASE OF:	  

		BOARD DATE:	    25 July 2013

		DOCKET NUMBER:  AR20130000716 


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 entries pertaining to excess leave from item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

2.  The applicant states he was locked-up during this period.

3.  The applicant provides no additional evidence.

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 available record shows the applicant enlisted in the Regular Army on 2 February 1979.

3.  On 16 January 1980, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating two specifications of Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave from 31 July through 28 August 1979 and from 1 September 1979 through 6 January 1980.

4.  On 17 January 1980, 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.

5.  In the applicant's request for discharge, he acknowledged he understood that by requesting a discharge he was admitting he was guilty of the charges against him or of a lesser-included offense therein which also authorized the imposition of a punitive discharge.  He also acknowledged he understood that if his request for discharge was 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.

6.  On 17 January 1980, the applicant requested a delay in the processing of the court-martial charges against him until the commanding general acted on his request for discharge for the good of the service in lieu of trial by court-martial.  The separation authority approved the applicant's discharge request on 25 February 1980.  The separation authority directed the applicant's discharge under other than honorable conditions and reduction to private/E-1.  On 28 March 1980, the applicant was discharged accordingly.

7.  Item 18 of his DD Form 214 shows he was on excess leave from 17 January to 28 March 1980.

8.  There is no evidence in the applicant's record and the applicant did not provide any evidence to support his claim that he was "locked up" throughout the   period of excess leave indicated on his DD Form 214.

9.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation indicates 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 18 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 used excess leave, item 18 would show the dates of excess leave, for example, "excess leave of 5 days from 5 May 1966 through 10 May 1966."

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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the periods of excess leave shown on his DD Form 214 should be removed because he was "locked up."

2.  The record shows the applicant, after receiving legal counsel, voluntarily requested discharge for the good of the service in lieu of trial by court-marital on 17 January 1980 and the applicant was discharged under other than honorable conditions on 28 March 1980.  There is no evidence and the applicant did not provide any evidence to show he was "locked up" throughout the period of excess leave listed on his DD Form 214.  

3.  By regulation, excess leave may be granted for Soldiers pending an administrative discharge.  It is presumed the applicant requested to be placed in an excess leave status or he was involuntarily placed on excess leave and upon his discharge the periods of excess leave were listed on his DD Form 214 as required by applicable regulations.  Therefore, there is insufficient evidence to grant him the requested relief in this case.

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)                                         AR20130000716



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ABCMR Record of Proceedings (cont)                                         AR20130000716



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