BOARD DATE: 12 November 2013
DOCKET NUMBER: AR20130004667
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 correction of his records to show he had 80 not 880 days of lost time.
2. The applicant states his records were corrected by a review board held in Phoenix, Arizona in 1992.
3. The applicant provides no supporting documentation.
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 5 August 1968, completed basic combat, advanced individual, and basic airborne training with award of the military occupational specialty 11B (Light Weapons Infantryman). He reenlisted on 31 August 1969.
3. A review of the applicant's file shows he was authorized or awarded the Bronze Star Medal, Air Medal (revoked on 28 November 1968), two Purple Hearts, National Defense Service Medal, Vietnam Service Medal with four bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with Rife Bar, and the Marksman Marksmanship Qualification Badge with Automatic Rife Bar.
4. The applicant was absent without leave (AWOL) on two occasions, on 15 July 1969 and from 4 November 1969 through 16 January 1972, a total of 804 days.
5. On 9 March 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 with an undesirable discharge (UD).
6. On 19 May 1977, the applicant's case was reviewed under the Department of Defense Discharge Review Program (Special) (SDRP). He was found to meet the criteria for an upgrade to a general discharge (GD).
7. The Army Discharge Review Board appears to have reviewed the applicant's case under the uniform standards provisions of Public Law 95-126. The actual review documents are not included in the available record. A DD Form 215 (Correction to DD Form 214), issued on 24 July 1979, deleted the specific reference to his earlier SDRP upgrade and added that the discharge was reviewed under Public Law 95-126 with a change in the characterization of service being warranted.
8. The available records contain no evidence of any administrative reviews or actions following the 1979 ADRB action.
9. Public Law 95-126, enacted on 8 October 1977, denied entitlement to veterans' benefits to former service members who had 180 or more days of AWOL and who had received an administrative upgrade under the SDRP unless their SDRP upgrade was reviewed and affirmed under uniform, historically consistent, generally applicable standards and procedures by the appropriate discharge review board.
10. Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]), states the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
The applicant is clearly shown to have been AWOL for 804 days. He has not provided and the record does not contain any evidence that his total period of lost time was ever shown as 880 days or that it was reduced to 80 days.
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.
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