BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130009753 


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 "129 days of time lost under Title 10, U.S. Code (USC), section 972" from his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states:

	a.  He entered the military in September 1971 and after his training he was stationed in Germany.  During this time his mother became very ill and he was granted emergency leave to be at her bedside.

	b.  While he was at home he was involved in an accident and went to the Naval Hospital for treatment.  He was given multiple tests.  When he did not hear from the hospital he went back to the hospital to get the results of the tests.  He was advised that they couldn't find his records and they would look for them.  Again he did not hear from them and he returned to the hospital.  He was again advised they couldn't find his records or the results and he had better get back to his unit.

	c.  He first went to Fort Devens, MA, and then to Fort Dix, NJ, and explained his situation.  No one believed him.  He was placed in confinement and had to sign papers on a weekly basis stating that he was absent without leave (AWOL). 
He told them over and over again that he was not AWOL.  He kept telling them what happened and they would just send him back to confinement.

	d.  After so many times of this and months of confinement they wore him down.  Being a young Soldier alone with no representation, he gave in and accepted an Article 15.  He was then reassigned to Fort Hood, TX.  He proudly finished his tour and commitment to his country.  He volunteered in the time of war to follow in his uncle's footsteps.  His uncle died during World War II and is buried at Arlington National Cemetery.  It should be noted that his military records show his overseas preference was Vietnam because he wanted to fight for his country.

	e.  Things did not go as he had hoped, but he was not AWOL for 129 days as shown on his DD Form 214.  He has been living with this pain for years and has been meaning to request correction of his DD Form 214.  He served his country proudly and was honorably discharged on 14 January 1971 in pay grade E-4.

3.  The applicant provides copies of his DA Form 2 (Personnel Qualification Record – Part I) and DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  Title 10, USC, 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 in pay grade E-1 on 8 September 1971 for 2 years.  He completed training and was awarded military occupational specialty 13A (field artillery crewman).

3.  On 5 November 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 31 October through 3 November 1971.

4.  He was advanced to pay grade E-3 on 21 January 1972.  He served in Germany from 25 March 1972 through 30 September 1973.

5.  On 16 May 1972, he accepted NJP under Article 15, UCMJ, for absenting himself from his guard post without permission on 10 May 1972.

6.  On 4 September 1972, he was reported AWOL and he was dropped from the rolls (DFR) of his organization as a deserter on 4 October 1972.  He surrendered to military control on 8 January 1973.  The DA Form 188 (Deserted Wanted by the Armed Forces) indicated he was AWOL from emergency leave to the continental United States (CONUS).

7.  On 31 January 1973, he accepted NJP under Article 15, UCMJ, for being AWOL from on or about 13 September 1972 through 8 January 1973.

8.  He was honorably released from active duty in pay grade E-4 on 14 January 1974.  He was credited with completing 2 years of net active service.  His DD Form 214 lists in:

* item 21 (Time Lost – Preceding 2 Years) – 136 days
* item 27 (Remarks) – 129 days lost under Title 10, USC, section 972

9.  Item 44 (Time Lost under Section 972, Title 10, USC, and Subsequent to Normal Date of Expiration of Term of Service (ETS)) of his DA Form 20 (Enlisted Qualification Record) shows the following:

* AWOL – 31 October 1971-2 November 1971 – 3 days
* AWOL – 4 September 1972-3 October 1971 – 30 days (lined through)
* DFR – 4 October 1972-7 January 1973 – 30 days (lined through)
* DFR – 4 September 1972-7 January 1973 – 126 days

10.  He provided a copy of his DA Form 2 which shows his overseas area of preference was Vietnam.

11.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The regulation required that time lost during the current enlistment would be entered items 21 and 27 of the DD Form 214.

	a.  Item 21 would list the inclusive dates of non-pay periods/time lost during the preceding 2 years and was required by other Federal agencies.

	b.  Item 27 would list the total number of days lost under Title 10, USC, section 972, as well as time lost subsequent to normal ETS.  This entry covered the entire period of service covered by the DD Form 214 as indicated on the DA Form 20.  Time lost under Title 10, USC, section 972, is not creditable service for pay, retirement, or veterans' benefits.  However, the Army preserves a record of this time even after it has been made up to explain which service between the date of entry on active duty and the date of separation is creditable.

12.  Title 10, USC, section 972, states an enlisted member of an Armed Force who:  (1) deserts; (2) is absent from his organization, station, or duty for more than 1 day without proper authority as determined by competent authority; (3) is confined by military or civilian authorities for more than 1 day in connection with a trial, whether before, during, or after the trial; or (4) is unable to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct for more than 1 day, as determined by competent authority; is liable to serve for a period after his return to full duty that, when added to the period he served before his absence from duty, amounts to the term for which he was enlisted or inducted.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was on emergency leave to CONUS in September 1972.  However, he did not return and was DFR as a deserter on 4 October 1972.

2.  In accordance with regulatory guidance, he was issued a DD Form 214 reflecting 129 days of lost time in item 27.  Item 44 of his DA Form 20 shows he was charged with 3 days of AWOL from 31 October 1971 to 2 November 1971 and 126 days as DFR from 4 September 1972 to 7 January 1973, for a total of 129 days of lost time.

3.  His DA Form 20 shows he was not charged with lost time until 5 months after his DFR date of 4 October 1972.  It appears he may have made up some of the lost time since he did not separate until after his original ETS (8 September 1973) and he was credited with completing 2 years of net active service.

4.  The fact remains that he had lost time during his period of active duty and he provided insufficient evidence to show otherwise.  There is insufficient evidence to show the entry in item 27 of his DD Form 214 is incorrect and to support its removal from his DD Form 214.  Therefore, 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 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)                                         AR20130009753



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009753



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1